A Backstop for the Backward?

Colin Murray (Newcastle University)

 

A Brexit deal is, on paper at least, done. Michel Barnier solemnly informed the gathered media that the controversial backstop arrangements contained within the draft Withdrawal Agreement’s Ireland/Northern Ireland Protocol have been replaced by a new “democratic cornerstone”.

The question that remains is whether this amounts to a genuine change, or bit of not-so-subtle rebranding for consumption by enough MPs to pass Boris’s version of the Agreement. Has Boris Johnson pulled off a diplomatic coup, or is this just a sales exercise?

The May Deal

The main shifts between the May and Johnson deals relate to the trading arrangements regarding goods applicable to Northern Ireland. Under Theresa May’s deal, the backstop would have applied to the whole of the UK after the end of the transition period if either a deal on the future UK-EU relationship sufficient to ensure an “invisible” border on the island of Ireland could not be reached, or if alternate arrangements preventing a need for border checks could not be developed.

The backstop would have ensured that Northern Ireland would align with the EU in terms of both customs and the Single Market’s regulatory arrangements for goods, and that the UK as a whole would align in terms of customs. It was sometimes referred to as the swimming pool model; Northern Ireland was in the deep end in terms of alignment with the EU and GB was in the shallower end (and able to diverge further in the future).

The Johnson Deal

The Johnson deal depends upon a legal sleight of hand. The UK as a whole leaves the EU Customs Union, but Northern Ireland continues to apply customs arrangements and tariffs which align exactly with those of the EU and remains bound by Single Market rules with regard to goods. As a matter of law it is part of the UK arrangements, as a matter of fact Brussels calls the shots. Unlike the backstop, which was avowed to be a last resort, this arrangement would kick in immediately and could last indefinitely.

Johnson’s allies in the DUP could not countenance such an arrangement without their consent. During May’s negotiations they repeatedly pushed for a “Stormont lock”, meaning that the Northern Ireland Assembly would have to approve the Backstop. Their calculation was that they could always use the cross-community voting arrangements in the Assembly (the “petition of concern”) to block any effort to extend large elements of EU law to cover Northern Ireland. The “democratic cornerstone” of the Johnson deal, however, gives the DUP no such veto.

The Democratic Cornerstone

Under the Johnson deal the Northern Ireland Assembly will vote to maintain the special arrangements for Northern Ireland in place four years after they come into being (for the first time in December 2024). It will continue to vote at four-year intervals thereafter (or longer intervals of eight years if the arrangements do receive cross-community backing). According to Ireland’s Taoiseach Leo Varadkar:

“The backstop has been replaced with a new solution, unique to Northern Ireland recognising its unique geography, and which protects the all-island economy and access to the single market and takes account of democratic wishes of the people in Northern Ireland.”

Again, however, talk of the backstop being replaced is all about helping Johnson to sell this deal. The democratic cornerstone is, in effect, an event-limited backstop, with the event in question being the Northern Ireland Assembly voting to end these arrangements. As the DUP and the Johnson Government well know, there is no majority for an end to these arrangements in Stormont, even if it is sitting. So even as Great Britain diverges from the EU after Brexit, many areas of law in Northern Ireland will remain tied to the EU.

Casting the DUP Adrift

It is difficult to have much sympathy for the DUP. Their support for Brexit, a play to move Northern Ireland’s economic and governance arrangements out of a balance between the UK and Ireland and into alignment with London, unleashed all of these problems over the border in the first place. They moreover repeatedly undermined Theresa May’s position, stoking discontent amongst Eurosceptics on her own backbenches and aligning themselves closely to Johnson. As a result, her deal crashed three times in Parliament and May was forced to resign. When Johnson entered No10, however, Arlene Foster and her party found themselves so bound up with “Project Boris” that they could not break with him without undermining the position they had held for months and making themselves appear ridiculous.

Boris Johnson was therefore able to reach an arrangement with the EU which in effect imposed a customs and regulatory border in the Irish Sea and did not give them the consent protections the DUP demanded and their resultant opposition has been met with little support from Conservative Eurosceptics. In any event, their main concern was with the extent to which May’s deal pointed towards a close future relationship between the UK and the EU. They have shown themselves more than happy to cast the DUP aside for Johnson’s vision of free-wheeling trade deals across the world. The DUP’s 10 votes in Westminster could nonetheless prove crucial when the Johnson deal is put to a parliamentary vote.

Ulster Northern Ireland at the Crossroads

But spare a thought for Northern Ireland under these new arrangements. The Nationalist politician Seamus Mallon once acerbically described the Good Friday/Belfast Agreement of 1998 as being “Sunningdale for Slow Learners”. In other words, the outlines of the 1998 deal were already in place in the Sunningdale Agreement of 1973, even if the Northern Ireland conflict claimed thousands of lives in between.

Johnson’s deal is, by comparison, something of a backstop for the backward; it replaces the easily intelligible arrangements of Theresa May’s deal with a spaghetti of complex clauses and rebates, and subjects the whole fragile (and currently broken) system of power sharing in Northern Ireland to the strain of a confirmatory vote every four years (with all of the uncertainty that brings for business).

It might be that Northern Ireland businesses can muddle through, and there might even be advantages for bigger businesses with more resources to devote to playing the system. But all of this unnecessary complexity is likely to take its toll on Northern Ireland’s place in the UK in the years ahead.

The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog

Colin Murray is a Reader in Public Law at the Newcastle University School of Law

Boris and Varadkar in Dublin on Sep.9. Featured image credit: Number 10 via a BY-NC-ND licence.