11 December 2018

The DUP are making the most of their time in the national spotlight. At Westminster the party is breaching the confidence and supply agreement with the Government, but over on the party’s twitter feed a political advent calendar is issuing a daily reminder of the benefits of that agreement for their constituents. The party say they will vote to defeat the Withdrawal Agreement but continue to sustain the Government in office so long as the deal is voted down – and some might say that they are having their cake and eating it.

In fairness to the DUP, the party is in an unenviable position. The Government which it supports has crossed their famous “blood-red lines” over Brexit – raising key existential questions for Unionism in Northern Ireland. While the Government has successfully moved the EU away from the idea of a Northern Ireland-only customs backstop (something Theresa May said that “no UK Prime Minister could ever agree to”), there are still aspects of the all-UK backstop proposal that are concerning to Unionists. The Attorney General’s vivid language in his advice to the Government makes clear what was previously obvious – that Northern Ireland under the backstop Protocol would be subject to a different legal order from the rest of the Kingdom. While a pragmatic argument can be made in defence of the backstop, the DUP feel that they cannot rely on assurances that the Government will operate it sensitively and maintain alignment between Great Britain and Northern Ireland for as long as the backstop operates. The Protocol does not envisage any role for the Northern Ireland Assembly in consenting to regulatory divergence, which the DUP saw as the minimum requirement for supporting the Government at the time of the December 2017 Joint Report.

In different circumstances, the DUP might consider withdrawing their consent from the Government and see what the opposition parties had to offer. But the party is boxed in by its own red lines on regulatory divergence, and may have left it too late to support a softer Brexit – although there have been some hints that they would be prepared to support a Norway-style deal provided that Northern Ireland was treated equally with the rest of the UK (a deal which may not be on offer). While some DUP figures have commented that Jeremy Corbyn’s position on Brexit now sounds more reassuring from a Unionist point of view, it seems highly unlikely that a Labour Government could negotiate a Withdrawal Agreement without a backstop (as some Labour figures acknowledge). The DUP want to stop the backstop and prevent a Corbyn premiership, but there is now a danger that they end up with both. Now that the Prime Minister has said she will seek further reassurances from Brussels over the backstop the DUP needs to be clear about what changes to the backstop they are proposing. Simply trying to remove it altogether is not realistic.

A “Stormont Lock”

There are, of course, a number of things that the Government could do to try and bring the DUP onside without re-opening the question of the backstop entirely – and it is perhaps significant that the party’s Chief Whip, Sir Jeffrey Donaldson, has said that the backstop ‘as it is currently drafted’ is unacceptable.

The first area of concern relates to the role of the Northern Ireland institutions under the backstop, and it is here that the Government could develop the idea of a “Stormont Lock.” It was the Prime Minister herself who spoke about this idea some time ago, while the Secretary of State for Northern Ireland, Karen Bradley, has said that Northern Ireland would not have to adopt new legislation without the consent of the people. As Open Europe Director Henry Newman has pointed out, the Stormont Lock would be designed to address the flow of new rules, rather than the existing stock. It would be designed to give a vote against new legislation rather than requiring an affirmative vote on every new rule. This could be a unilateral commitment by the British Government and Parliament to consult the Northern Ireland Assembly – enshrined by Act of Parliament – and developed as part of a memorandum of understanding between the British and Irish Governments. There is no reason it could not be written into the backstop Protocol or a side agreement. A Stormont Lock would be entirely consistent with the existing mechanism which makes clear that any new rules have to be agreed to by the Joint Committee, which is, after all, a political mechanism.

Exiting the backstop

The other point that concerns Unionists is whether the all-UK nature of the backstop is durable in the longer-term, and whether there is an exit route for the whole UK. The Government’s position is that its policy would be to maintain alignment between Great Britain and Northern Ireland for as long as the backstop was operative, but that might become politically unsustainable in the longer term. Article 6, Annex 2 of Protocol, for example, envisages certain circumstances where the EU could insist on East-West checks between Great Britain and Northern Ireland. The EU should make clear that it recognises that such checks would be contrary to the spirit of the Withdrawal Agreement.

Whereas many Brexiteers – and indeed Remainers –  are concerned that there is no unilateral exit mechanism for the UK in general, Unionists from Northern Ireland are more specifically concerned about whether there is an exit route for the whole of the UK, including Northern Ireland. As Nigel Dodds, the DUP’s leader at Westminster, explained in the House of Commons, “When it comes to the point at which a final arrangement—a final trade deal—is agreed, whatever that may look like, it is clear that there will be those in other jurisdictions and Governments who will say, ‘Well, UK, you can have whatever arrangements you like, but one thing is certain: as far as Northern Ireland is concerned we still do not accept that there can be no hard border through the use of technology, so Northern Ireland is going to have to stay in the customs union and single market.’” The prospect of Great Britain leaving Northern Ireland behind in the backstop is something envisaged in the Attorney General’s legal advice to the Government. The EU, he explained, could “submit a formal notification to the Joint Committee arguing that the Protocol was no longer necessary in part and that the GB elements of the customs union should fall away, leaving only NI in the EU customs territory as the minimum necessary to achieve the objectives [of protecting the Good Friday Agreement].”

Of course, the UK could not be forced to agree to this, and it would, as the Attorney also pointed out, have grounds to reject any such proposal on the grounds that it is inconsistent with Article 6.1 of the Protocol creating a single customs territory. But this is ultimately a political question. What if a future Government is presented with a choice – remain in a customs union with the EU or pursue a different path outside the EU’s ambit without Northern Ireland? In such circumstances Ulster Unionists might not be in a strong enough position in Parliament to stand in the way of the rest of the UK leaving the orbit of the EU. It is not enough to say that current Government policy rules out such a course – Government policy can change.

Again, there are ways to offer reassurances to Unionists that the carpet will not be pulled from under them in the future – and these are compatible with the backstop Protocol as it stands. Article 20 – the review mechanism – says that “The Joint Committee may seek an opinion from institutions created by the 1998 Agreement” before any decision is reached on ending the backstop. This does not refer specifically to the Northern Ireland Assembly, and there would be no requirement on the part of the Joint Committee to accept the verdict of the Assembly. Given that the Protocol already provides that the Joint Committee may consult the Northern Ireland Institutions under the Review process as set out in Article 20, there would be a strong case for it to do so if the Assembly was sitting at the time the Review process was taking place. It would be unlikely that any UK Government would be willing to give the Northern Ireland Assembly a ‘veto’ over the Protocol applying “in whole”, but its opinion could be sought about whether it might continue to apply “in part”, in other words the Northern Ireland-only provisions. This could also be a domestic commitment guaranteed by Act of Parliament.

The other alternative is to put the matter to the people of Northern Ireland in a referendum. This would not be a border poll as envisaged under the Good Friday Agreement, but a consultative referendum on Northern Ireland’s customs arrangements if the UK and EU agree to diverge in the future. The idea of such a referendum has been canvassed already, but it would be premature to hold one before the “totality of relationships” between the EU, the UK and Ireland is known. This option would have to be kept in reserve and would not be used in circumstances where a close customs arrangement is agreed between the two sides.

Long-term implications of the backstop

There are, of course, problems with all of these options. The EU would be reluctant to write any role for the Northern Ireland Assembly into the Withdrawal Agreement on the grounds that it is an internal matter for the UK – but the institutions are already referred to in the Protocol, and the Joint Report of December 2017. The principle for special treatment of Northern Ireland has already been conceded. The Irish Government would object on the grounds that they do not want to give the Unionists a veto over the operation of the backstop or the exit mechanism – but this is hard to justify given that the cross community veto is already built into the Good Friday Agreement already. As Lord Bew has pointed out, the North-South cooperation provided for in the 1998 Agreement only worked because it took a bottom-up approach to such matters. The backstop takes a top-down approach.

It is understandable that the UK Government had been reluctant to develop any of these ideas before now, but there is perhaps a final chance to get the backstop right. It still seems unlikely that the DUP will be brought onside, especially since the party leadership continues to insist that the “backstop must go.” They see the whole concept as flawed. Equally, there is a danger that opening up the question of the exit mechanism would actually undermine existing reassurances about the all-UK nature of the backstop. Introducing a role for the Northern Ireland Assembly could increase the likelihood of divergence with Great Britain, since it could give a future British Government a convenient excuse to follow the path of least resistance with Ireland and the EU. There is also the problem, from the UK’s point of view, that the Assembly and Executive are not currently sitting – although some informed commentators have put forward the idea of a grand bargain whereby the Assembly is given a role in the backstop in exchange for Unionist concessions on an Irish language Act and other areas of reform. A referendum on the backstop could bring further instability and would inevitably be used by both sides as a proxy border poll. To avoid this scenario, Unionists must show willingness to engage with the whole community if they want to be taken seriously by Brussels, Dublin and London.

Whatever happens with Brexit, there will be many discussions about the future governance of Northern Ireland. Although opinion polls show that a majority of people there are sympathetic to the backstop, they cannot really take an informed view of this before the future relationship between the UK and the EU becomes clearer. The backstop seems to offer certainty in an uncertain world. But just as the UK as a whole faces difficult choices about its future, there may come a point at which Northern Ireland has to decide which path it wants to follow.