Whatever Happened to the Irish Backstop?
By Nikos Skoutaris
The Brexit negotiations have been haunted by an almost unsolvable riddle. How could the UK and the EU keep the Irish border free of any physical infrastructure without jeopardising the integrity of the single market?
That riddle has two possible solutions. The UK as a whole could opt for a relationship with the EU that would be much closer than the one described in its red lines. Since Theresa May’s Lancaster House speech, such red lines entailed that the UK would not be part of the single market and the customs union after Brexit takes place. Alternatively, the UK could accept that Northern Ireland would have a closer relationship with the European Union than the rest of the country.
Initially, the UK Government and the ardent Brexiteers rejected what they thought was a false dichotomy. They insisted that it would be possible for the UK to have ‘its cake and eat it’ by both leaving the EU structures and keeping the Irish border frictionless. The EU remained highly sceptical of this rather optimistic point of view. But they did entertain that possibility. They made clear, however, that the UK Government should accept that there must be an insurance policy which keeps the border open in case the UK’s proposed solutions cannot achieve this aim. This insurance policy came to be known as the backstop.
The initial EU proposal included in the first draft Withdrawal Agreement in February 2018 provided that Northern Ireland would remain within the EU customs territory. Of course, remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures is anathema to many, not least the DUP. This is why the UK insisted and the EU accepted to amend the backstop in the Withdrawal Treaty that was agreed with Theresa May’s government in November 2018. Barring a deal on free trade that secures a frictionless border, the UK as a whole would become a single customs territory with the EU, while Northern Ireland would additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border. However, that compromise was defeated three times in Westminster. That failure of Theresa May to get her deal approved by the Parliament paved the way for Boris Johnson to come to power.
Not Quite Ditching The Backstop
A month after the current UK Prime Minister took his office, he sent a letter to the President of the EU Council, Donald Tusk, with which he informed the EU that his Government ‘cannot continue to endorse the specific commitment […] to “full alignment” with wide areas of the single market and the customs union.’ What he did not say in that letter is that this statement would apply only to Great Britain but not Northern Ireland.
In the beginning of October, Boris Johnson revealed his plan for an alternative to the backstop that was based on the idea that Northern Ireland will be part of the EU single market for all goods. With this, the UK Government accepted once more that the region with the turbulent past would have a different relationship with the EU than the rest of the country.
Two weeks before the UK is supposed to withdraw from the EU, a revised Withdrawal Agreement has been revealed. This new deal was built on a political agreement that was achieved in a meeting between the UK Prime Minister and the Irish Taoiseach. The new Brexit Deal is almost identical to Theresa May’s one except for the fabled backstop (and the changes in the non-legally binding political declaration).
The new arrangement for Northern Ireland is not any more an insurance policy that would kick in should the future UK-EU relationship prove unable to keep the Irish border open. It is a differentiated arrangement for the region that could only collapse should the regional parliament decide so or if a future arrangement supersedes it. Certain UK politicians and commentators have described that as a huge success for Boris Johnson who has managed to ‘ditch the backstop’. In reality, the new Northern Ireland-specific arrangement has become more permanent and will be a defining characteristic of the political and constitutional life of the region.
The major difference with the February 2018 EU proposal for a Northern Ireland-specific arrangement is that the current deal recognises that de jure Northern Ireland remains within the UK customs union. This amendment was motivated by a rather misconceived notion of the issue of constitutional integrity. As I have explained elsewhere, it is perfectly possible within a State for there to exist different customs territories. In fact, Northern Ireland under this new arrangement will be applying large swathes of EU law in the area of free movement of goods making it de facto part of the EU customs territory. This should not be considered as a challenge to UK sovereignty. Neither should the regulatory and customs checks that will be taking place in the Irish Sea. At the end of the day, within the EU legal order there are a number of cases where different parts of a member state might have different relationships with the EU. The sovereignty of a Member State over these areas has never been challenged just because EU law is applied differently there.
In any case, it should be pointed out that similar to what had happened in Theresa May’s agreement, the UK Government has again accepted that parts of EU law should be applied in Northern Ireland if the Irish border is to remain frictionless. This is a tacit admission that there are no magic technological solutions that can keep the land border open. The application of the relevant EU legislative framework in the area of free movement of goods has always been a condition sine qua non.
From a substance point of view, the fact that the region would remain de jure part of the UK customs union ensures that it will have access to the free trade agreements that the UK will strike. If one puts aside the bureaucratic and administrative costs that companies in Northern Ireland will be facing, the arrangement allows the province to have the best of both worlds.
Still, the DUP has made clear that they will not be voting for that deal. This is largely unsurprising. On the one hand, the party has raised the stakes by declaring in the recent past that they ‘will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom. On the other hand, the new deal does not provide for a ‘unionist veto’ per se.
According to the consent mechanism provided in the deal, the Northern Ireland Assembly will vote on those arrangements at the earliest in 2024. More importantly, unless and until there is a majority of members that vote against this differentiated arrangement, it will continue existing. At the moment, such a majority does not exist.
The DUP has also signalled however that the vote on Saturday is just the beginning of their struggle to nullify this arrangement. This statement of intent points to an underappreciated danger that the deal introduces. It is a well-established practice of parties in political and/or constitutional conflicts to use every forum as another arena for their political battle. The consent mechanism, despite being a welcome channel of democratic input, might lead to yet another proxy war on the constitutional issue that divides the two main communities in Northern Ireland. It seems that both the UK and the EU decided that this is a manageable risk that will only arise in the medium to long term. And as it often happens the sound of the can kicked down the road is the soundtrack of the approach towards divided societies.
But for all this to happen, Boris Johnson must first manage to find this elusive majority in the Parliament. At this moment, this seems possible but by no means certain…