Let’s cut the DUP some slack. They’re an easy hit. But on this one, the DUP are not alone. The democratic deficits in the draft Withdrawal Agreement are uniting both sides of the argument against it. The UK as a whole and Northern Ireland in particular can’t leave their respective customs arrangements and regulatory alignment without EU consent or highly undesirable consequences. Brexiteers resent being dragged into a customs arrangement with the EU to prevent an NI specific backstop. In the final deal, quitting the arrangement without EU permission and “the border in the Irish sea” re-appears like the ghost of an old wreck.
The deficit for Northern Ireland is greater than for GB and arguably greater even than in the Anglo-Irish Agreement of 1985. This is a valid complaint and a bugger to solve. Northern Ireland is not even represented on the joint committee which might allow the backstop to be scrapped, nor how the more detailed EU rules for NI than GB are enforced.
The DUP are hesitating over breaking their deal with the Conservatives in the hope of addressing the problem. Their support for the government appears to hang on the chances of Brexiteer ministers to “improve” the draft agreement. Sceptical cabinet ministers think they’ve spotted grounds for opposing the deal without bringing the government down.
Brexiteer cabinet ministers Michael Gove, Andrea Leadsom, Penny Mordaunt and Chris Grayling and Liam Fox have given Theresa May “an ultimatum” that their resignations will follow unless their demands for amending the Withdrawal Agreement aren’t met within a fortnight.
One source said that Mrs Leadsom in particular wanted to make it clear to Downing Street that she should use the EU summit a week tomorrow to demand compromises on the Irish backstop.
Tim Durrant of the Institute for Government explains how they’re facing an uphill struggle. The Government has made resolving the issue even more difficult by making three sets of contradictory promises in response.
No customs border within the UK means a UK-wide customs arrangement, which enrages Brexiteers because it also means the UK would be unable to pursue an independent trade policy. Hence the promise that such an arrangement would be time-limited.
But a time limit contradicts the commitments made in the joint UK–EU report of December 2017, reiterated by the PM in a letter to Donald Tusk in March 2018, that the UK supports a backstop that applies ‘unless and until’ something better is found.
“Max fac” and the ‘new customs partnership’, which would have allowed the UK to collect tariffs on behalf of the EU were both rejected by the EU, and morphed into the Facilitated Customs Agreement (FCA) in the Government’s Chequers White Paper.
There are two problems with the FCA: the EU hates it, and it’s based on untried technology so will not be ready for years. Without any new proposals, the permanent backstop is still needed.
Customs is only one part of the problem. To avoid any checks at all at the border, both jurisdictions need to apply the same regulations – rules on things like products standards and animal health – as well. Many of these are set by the EU and apply to the whole Single Market.
The UK wants to leave the Single Market, in part so it can set its own regulations rather than aligning with the rest of the EU. If it changes regulations but does not allow checks at the Irish border, goods going from Great Britain to Northern Ireland will need to be checked to ensure they meet the standards of the Single Market. The Prime Minister has said that there will not be checks on goods moving from Northern Ireland to Great Britain, but has so far been non-committal on checks going the other way.
However, the DUP understand the December 2017 joint report as promising no extra checks on goods going either way between the two parts of the UK. They argue that any such checks would jeopardise Northern Ireland’s place in the UK’s internal market. A leaked letter from the Prime Minister last week suggests that the UK Government is happy for Northern Ireland to keep EU rules in some areas, meaning the Prime Minister is preparing to disappoint the DUP.
So herein lies the case for “betrayal”
All of this is moot if the Irish border is kept open by the future trading relationship – which the PM says will “of course” be the case.
But the EU does not like her attempt to do it via Chequers and doesn’t think it is possible with a Canada-style deal. Even a Norway deal doesn’t do it without a permanent commitment to a customs union, which brings us back to the concerns over a time limit. Which is why everyone is putting so much effort into the backstop.
The PM’s bold assertion that everything will be OK in the future may be yet another of those promises that comes back to bite the Government down the line.
Why make these contradictory promises in the first place? Each one was, on its own, to get the Government out of a tricky situation – but together they’ve built a house of cards that could collapse at any moment. At some point soon, the Government is going to have to confront these contradictions head on and decide who they are going to disappoint.
But there are ways that the British and Irish governments and the local parties presently at standoff could improve it. Clearly Fortress Ulster has no future and when the dust has settled the DUP will admit that.
However the Ireland/Northern Ireland protocol allows a consultative role for the GFA institutions on exiting the backstop. It recommits the UK government to developing north-south relations. Both governments should surely flesh out specific roles for the Assembly with incentives for the parties to return to Stormont. Frictionless trading north-south and east- west in both directions is a common aim that needs close monitoring and technological development. Is it too much to hope for that trust could build up within the GFA institutions that could replace the backstop in its proposed form?
Open Europe’s analysis describes the EU’s future role in Northern Ireland with consultative roles for the GFA institutions
It’s clear that under the terms of the backstop, EU agencies and institutions would continue to have an important role in Northern Ireland in the range of areas where it continues to apply EU rules. For instance, the European Commission will “continue to enforce” state aid rules in Northern Ireland. Elsewhere, Article 14(4) of the Protocol gives the European Court of Justice (ECJ) jurisdiction in Northern Ireland with regard to the EU customs code, technical regulations, agriculture and the environment, the single electricity market and state aid.
… the Protocol does not envisage any direct role for the Northern Ireland Assembly in oversight of the backstop arrangements, merely acknowledging the “roles, functions and safeguards” of the Northern Ireland Executive, the Assembly and the North-South Ministerial Council provided in the 1998 Good Friday Agreement. Indeed, Dominic Raab’s concern about the proposed regulatory regime for Northern Ireland was the first reason cited for his opposition to the Withdrawal Agreement in his resignation letter to the Prime Minister. Instead, the operation of the Protocol would be overseen by the Joint Committee, which will have a duty to see that the conditions for North-South co-operation are maintained.
Exiting the backstop
The Protocol downplays the constitutional implications of the backstop. Article 1(4) of the Protocol confirms that the “objective” of the Withdrawal Agreement is “not to establish a permanent relationship between the Union and the United Kingdom,” and adds, “The provisions of this Protocol are therefore intended to apply only temporarily.” However, it then clarifies that they apply “unless and until they are suspended, in whole or in part, by a subsequent agreement.” And according to Article 2 of the Protocol, a future agreement may supersede it only “in part,” keeping open the possibility that some Northern Ireland-specific elements could remain even after the full future agreement enters into force.
Article 20 of the Protocol also contains a review mechanism. This provides the UK with a potential exit from the backstop arrangements, though it is not the unilateral mechanism for which former Brexit Secretary Dominic Raab argued. It states that after the end of the transition period, if either the UK or the EU believes that the Protocol, “in whole or in part,” is no longer necessary to prevent a hard border, then it may notify the other party. The Joint Committee will then meet to consider this notification within six months, and in doing so may “seek an opinion” from the institutions created in the 1998 Agreement (i.e. the Northern Ireland Executive and Assembly, the North-South Ministerial Council and the British-Irish Intergovernmental Conference). The Committee is not obliged to consult these institutions, although presumably the UK representatives on the Committee would push for it to do so. If the UK and EU, through the Joint Committee, then decide that the backstop is no longer necessary, then it shall cease to apply – again, “in whole or in part.” There are also commitments to negotiate a future relationship in “good faith.” Nevertheless, it is hard to interpret all this as adding up to a clearly defined exit route for the UK.
Is it too much to hope for that trust could build up within the GFA institutions that could replace the backstop in its proposed form?
What are the “rebel” cabinet members’ ideas for solving the democratic deficit?
They said that she wanted to see language inserted into either the withdrawal agreement or political partnership declaration that commits the EU to working on a technical solution to the Irish border that would avoid the need for a temporary customs union. The group’s plans were described as a “work in progress”, and a “last-ditch attempt to find something to put to the Commons”.
You can say that again. So far this is vague stuff. If they quit, it reads like a last ditch alibi against taking the blame for the eventual fall of the Theresa May’s government. Their chances of winning these concessions from the EU seem no better than Theresa May’s in winning majority support for the agreement in the Commons.
So now we come to No Deal. Peter Foster, Europe editor of the Daily Telegraph describes what it might look like.
Experts believe that, if the UK plays its cards right politically, a managed ‘no deal’ could yet emerge. EU officials have speculated about an extension of Article 50 for a few months, to create a “parachute” to put temporary measures in place.
Charles Grant, the director of the Centre for European Reform, is confident that if the crunch comes EU member states will strike bilateral side-deals with the UK to cushion the blow. “For now the Commission is taking a strong line, but EU member states will have to look after their own interests”, he predicts.
“No deal” – even a managed ‘no deal’ – pre-supposes that the Irish backstop was not deliverable on the UK side. This presents a huge difficulty for the UK side in how to manage a ‘no deal’ without poisoning the entire negotiation over the old argument over how to ensure no return to a ‘hard border’ in Ireland.
In the short term, neither the UK nor the Irish governments are expected to put up a border (privately officials from both governments say they will not) even though in the longer term WTO rules will require the UK institutes checks. On the Irish side, if there are no checks, then the EU is likely to start checks between Ireland and the 26 other EU states.
On a temporary basis the border could be managed, perhaps by a legally contentious WTO exemption on national security grounds, but choices could not be deferred indefinitely.
Both governments are committed to no hard border. Brexiteers hope that the crucible of ‘no deal’ will force both sides to be more creative – the risk is that the politics sours quickly and the EU takes a punitive approach to force the UK’s hand.
Let’s hope it doesn’t come to that…
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London