14 January 2019

The Government last week published a paper, “UK Government commitments to Northern Ireland and its integral place in the United Kingdom.” As expected, the paper focuses on unilateral measures on the part of the UK and stops short of seeking any changes to the text of the Withdrawal Agreement itself  – though it is also important in terms of identifying areas that can be built upon with the EU, in the event that further side agreements can be reached. The paper reaffirms the Government’s support for Northern Ireland’s place in the UK (“we will never be neutral in expressing our support for the Union”) while also recognising the “unique” circumstances of Northern Ireland and the context of the wider devolution settlement in the UK. It restates the Attorney General’s argument that there is nothing about Brexit or the backstop which undermines the Good Friday Agreement – a view which has been questioned by some academics and experts on Northern Ireland. The paper has been criticised (for different reasons) by Unionist and Nationalist parties in Northern Ireland, including the Democratic Unionist Party (DUP), which retains its confidence and supply arrangement with the Government. The original document has been followed today by the exchange of letters between the Prime Minister and the European Commission and European Council Presidents, Jean-Claude Juncker and Donald Tusk. Although the Government is not yet in a position to persuade the DUP to support the Withdrawal Agreement, there has been renewed speculation that the EU might yet be willing to amend the backstop Protocol. At the very least, the documents are an important step in acknowledging that some movement on the backstop is necessary.

Overall, the Northern Ireland paper contains a number of important ideas which form the basis of a way ahead, but the Government might have been more likely to retain the support of the DUP had they fleshed them out at a much earlier stage. The paper notes that there will be a “strong role for the Northern Ireland Assembly” to express a view before the backstop is actually triggered at the end of the transition period (there would first be a choice to extend the transition) while also stating that this ultimately remains a decision for the UK Parliament. Significantly, the Government stands by its position that it does not want to enter the backstop at all, suggesting that it is doubling down on this argument rather than viewing the backstop as an attractive place to be.

As far as the operation of the backstop is concerned, the paper says that Ministers are obliged to seek the opinion of the Assembly before European law can be applied to new areas in Northern Ireland for as long as the backstop endured. This is the “Stormont Lock” originally promised by the Prime Minister in November and discussed in Open Europe’s initial response to the Withdrawal Agreement – and goes some way in fulfilling the commitments under the December 2017 Joint Report. The Government’s proposal falls short of a formal veto for the Northern Ireland Assembly, but instead the Government will rely on the UK’s ability to resist new Acts falling within the scope of the Protocol as noted in Article 15(5) of the Protocol text. The Juncker / Tusk letter acknowledges that “the Withdrawal Agreement is also clear that any new act that the European Union proposes should be added to the Protocol will require the agreement of the United Kingdom in the Joint Committee.”

The other way that the Government envisages a role for the Northern Ireland institutions is through representation on the Joint Committee tasked with overseeing the Withdrawal Agreement itself, as well as the Specialised Committee which oversees the operation of the backstop Protocol. Reference is also made to the Joint Consultative Working Group which reports to the Specialised Committee. While the UK’s representation on these matters is entirely a matter for the UK Government, it has pledged to agree a Memorandum of Understanding with a future Northern Ireland Executive to establish what role it will have in relation to any Northern Ireland-specific issues under consideration. Again, the Juncker / Tusk letter acknowledges that the Withdrawal Agreement allows for the Northern Ireland Executive to be represented on the Joint Committee.

Most importantly, the Government states that there would be “no divergence in practice between the rules in Great Britain and NI covered by the Protocol in any scenario in which the backstop took effect.” This is an issue which goes right to the heart of Brexiteer objections to the backstop – the fear that the backstop is a trap that keeps the UK under the orbit of the EU, although this commitment should allay Unionist fears about the possibility of divergence by Great Britain under the backstop. From the point of view of businesses in Northern Ireland, this is necessary to reassure them that the backstop would actually work. It is also worth noting that even under the backstop there is significant flexibility for the UK to diverge in many areas – rules on services, level playing field rules, and immigration policy. Being outside the EU, even if aligned to it in some respects, Northern Ireland would be different from the Republic in ways that it is not at present.

Do these proposals go far enough to make the backstop acceptable to Unionist opinion in Northern Ireland? Given the tone of the DUP’s recent statements, and the party’s demands for changes to the text of the Withdrawal Agreement itself, it seems unlikely that the Government thought that these proposals would bring the DUP on board. As the party’s initial response to the paper made clear, Unionists do not place much value on unilateral commitments on the part of the British Government when considered in the context of the UK’s obligations under international law. The party is also suspicious of the fact that the Government seems to have accepted many of the arguments used in favour of the backstop which Ministers had previously rejected, and believe that the Government is downplaying the significance of what is being proposed under the backstop. In particular, the DUP rejects the argument that the backstop is justified because Northern Ireland already differs from the rest of the UK in respect of animal health rules, for example. As the party’s deputy leader Nigel Dodds put it in the House of Commons, those areas where there are regulatory differences “are extremely small in number,” and “were instituted with the democratic will of the Northern Ireland Assembly under the previous regime in Northern Ireland.” They were not implemented because Northern Ireland was under a different regime for goods or agri-food, which would be the reason for any additional checks under the backstop.

If the DUP’s reaction to the latest proposals was to be expected, this does not mean that the Government is necessarily on the wrong course. The Prime Minister has an obligation to follow through on the commitments she has already made – particularly on the Stormont Lock – even if she cannot bring the DUP on board with the Withdrawal Agreement.

There are, however, two important ways that the Government could seek to address ongoing Unionist concerns. The first is to further expand the role set out for the 1998 institutions contained in the backstop Protocol in a way that is consistent with Strand II of the Good Friday Agreement. Paragraph 17 of the Agreement states that any areas of North-South co-operation with a European Union dimension fall within the remit of the Council and ensures that the “views of the Council are taken into account and represented appropriately at relevant EU meetings.” The EU Presidents’ letter now recognises that the backstop provisions “do not alter in any way the arrangements under Strand II of the 1998 Agreement in particular,” but there is room for further work on addressing the specific reference to paragraph 17 – particularly if the text of the Protocol is opened up. At the very least, these reassurances could be put into a codicil to the Withdrawal Agreement.

The other way that the Government should address concerns about the backstop is to seek further assurances from the EU that the UK’s membership of it will be temporary and that Great Britain will not leave the backstop while Northern Ireland stays behind. DUP MPs and other Unionist commentators have raised the possibility that Great Britain could exit the backstop leaving the Northern Ireland-only provisions in place. The Attorney General’s legal advice to the Government also envisaged certain circumstances where the EU 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].” If this is indeed the implication of Article 20 of the Protocol, then it is worrying for Unionists in Northern Ireland.

Of course, it is true that there may be a need for special arrangements for Northern Ireland once a future trade deal is in place, after the UK leaves the backstop. It may be necessary to contemplate continued regulatory checks between Northern Ireland and Great Britain in that scenario. But the prospect of internal customs barriers within the UK would still be anathema to the DUP as well as Unionist-minded MPs in Great Britain. Parliament has already indicated its strength of feeling on the matter in the amendment to the Customs Bill which stated that it would be unlawful for the Government to enter into any international agreement by which Northern Ireland was treated as part of a separate customs territory from the rest of the UK. The cross-party feeling on this issue helped to steer the Government towards the all-UK backstop proposals agreed in November. If a similar condition was written into the Withdrawal Agreement Bill itself – stating that the Government cannot enter into any such arrangement in the future – it could help to set the tone of the future negotiations. Its repeal could be made subject to approval by a super-majority in Parliament, or subject to a referendum or an Assembly vote in Northern Ireland. The Government has already proposed that aspects of the Withdrawal Agreement Bill should be protected with extra safeguards (discussed by the Institute for Government here), so there is no reason that additional reassurances on Northern Ireland could not be considered too.

It should be noted also that the UK’s latest pledges on Northern Ireland have raised Sinn Fein concerns that the Government is simply attempting to placate the DUP for party political reasons, while the Irish Taoiseach, Leo Varadkar, has said that his Government would not support any arrangement which would “essentially give one of the two communities a veto power over the other.” Varadkar also pointed out that the existing Protocol already gives a role to the Northern Ireland institutions – but if that is so there is no reason why the Irish Government should not engage more fully with the Government’s new proposals.

More than anything, the reactions in Northern Ireland show that Unionist and Nationalist understandings of Brexit and the backstop remain as far apart as ever. It is incumbent on the British Government to try to explain its position to both sides, seeking a consensus in Northern Ireland.

Two years after the collapse of the Executive in Northern Ireland, it is important to remember that any role for the Assembly envisaged in the backstop depends on the institutions getting up and running again. Indeed, such a role could provide an incentive for the parties to return to the negotiating table at Stormont, but this would need to be handled very sensitively. The DUP currently have safety in numbers in opposing the Brexit deal at Westminster, while in Northern Ireland the rival Ulster Unionist Party has been equally critical of the Government’s Brexit stance. But the DUP’s current strategy is not without political risk, and the situation will change rapidly in the coming weeks. There may yet be a way through for the Government, however, if Ministers look closely at what DUP MPs have been saying. Brexit adds to the political uncertainty in Northern Ireland, but the current negotiations also provide an opportunity for the Government to revive the Good Friday Agreement.