This blogpost was written on Tuesday morning, Oct 8th.
As things stand, the UK is due to leave the EU on October 31st next. UK prime minister, Boris Johnson, has said he will take the UK out on that date, “do or die”. However, the UK parliament has passed legislation, The Benn Act, which instructs the prime minister to request a further Brexit extension from the EU should there be no withdrawal agreement in place by October 31.
Johnson has said that his government will “obey the law” but will still take the UK out of the EU on October 31 next. At the same time, he has given an assurance to the Scottish courts that he will write the mandated extension letter to the EU, if necessary.
“Alice laughed: “There’s no use trying,” she said; “one can’t believe impossible things.” “I daresay you haven’t had much practice,” said the Queen. “When I was younger, I always did it for half an hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.”
It would appear that the only way that the UK can now leave the EU on October 31st next is with a “Brexit deal”. The former prime minister, Theresa May, had negotiated such a deal but it was rejected three times by the House of Commons for a variety of reasons.
On the government benches the main reason for opposition from MPs was the “Backstop”, the commitment from the May government that the whole of the UK would stay in a customs union with the EU if a trade deal that prevented the emergence of border infrastructure on the island of Ireland was not agreed by the end of the transition period, December 2020.
MPs saw this as having the potential to keep the UK locked in a customs union with the EU, so preventing it from doing its own trade deals with countries like the US and Australia. Such was the fervour of Tory MPs about trade deals that at times it seemed like they were the only raison d’etre for Brexit. (Note: They are not a sufficient raison d’etre but then it is difficult to find any reasons at all for Brexit).
Ironically, it was the May government that had asked for the “UK-wide Backstop”. From the start of the Brexit process, the EU had insisted that Brexit could not result in the re-emergence of a hard, physical border on the island of Ireland.
To prevent this happening, May had agreed in November/December 2017 to an “Irish Backstop”, whereby Northern Ireland would stay in the EU’s customs union and single market. It is the combination of the single market, which eliminates the need for regulatory controls, and the customs union, which eliminates the needs for tariffs and rules of origin controls, which together eliminate the need for an economic border and associated controls.
The UK, Ireland and Northern have long had a “common travel area” which meant no controls on the movement of people between the three areas.
Northern Ireland, however, is historically, deeply contested political territory. Since the partition of Ireland in 1922, the majority of the population in Northern Ireland have identified themselves as British, with the minority identifying as Irish. Because of recent demographic trends the size of the majority is shrinking, with the minority moving towards parity with it. It is not inconceivable that those who identify as Irish could soon be in the majority.
For much of its history the British-identifying majority in Northern Ireland exercised unfettered political control, with the Irish-identifying minority feeling – justifiably – deeply discriminated against. Further, there has always been a strand in Irish political life which saw Northern Ireland as illegitimate, justifying violence to bring it to an end. “The armed struggle” for “Irish independence”, as it was known, has a long history.
In the late 1960s, the Irish-identifying minority took a leaf out of the American civil rights movement and began to campaign for equality of treatment with the majority. Repression quickly followed and this repression saw those who drew upon the “armed struggle” tradition begin a bloody, thirty-year-long campaign.
Hard, security borders separated Ireland from Northern Ireland during this time. For those who lived around the border, life was anything but normal.
The European Single Market came into existence on January 1, 1992. Coupled with the already existing customs union and the common travel area this meant that the immigration and economic reasons for a border between the two parts of Ireland had now completely disappeared.
This melting away of economic borders provided the context in which the Good Friday Agreement was negotiated. Through multi-strand political structures, a creative way was found which allowed the different national identities in Northern Ireland to coexist, in an all-too-often fragile peace. Existential questions of sovereignty became blurred. The security borders were taken down.
The European Union market, commercial and customs ecosystem was crucial to this development. It remains so today.
Brexit tears this apart by pulling the UK out of this ecosystem. Theresa May made clear from the start that Brexit meant the UK leaving the EU’s single market and customs union. If the UK was outside of both then new borders would appear though there is some evidence that May believed that it was possible to be outside of both while still maintaining “frictionless, borderless” trade. Countless hours have been wasted ever since in the search for ways to make the impossible, possible.
Ireland and the EU were under no such illusion. They knew that if Northern Ireland was taken out of the customs union and the single market then border controls would reappear on the island. Not only would such controls wreak economic havoc in Northern Ireland, but they would also reopen questions of national identity and bring issues of sovereignty back into focus. The risk of a return to violence would run high.
For the EU, which was created to prevent another war in Europe, maintaining the conditions which sustain the Good Friday Agreement became a priority. The way to do this was to keep Northern Ireland in the single market and the customs union, irrespective of what relationship was negotiated between the EU and the UK after Brexit.
The EU proposed that if the post-Brexit agreement between the UK and the EU saw the need for borders between the two then Northern Ireland would stay in the single market and the customs union “unless and until” alternative arrangements could be found which made a physical border between divergent customs regimes unnecessary. And so, the “Irish Backstop” was created.
The agreement by the EU to extend the “Irish Backstop” to the whole of the UK led to the ousting of May as Tory leader and UK prime minister. Her replacement, Boris Johnson, had campaigned on the promise of “binning the Backstop”.
The EU made it clear that if he wanted to bin the UK Backstop he could, but the NI Backstop stayed. Johnson responded that he wanted to bin the Backstop in its entirety and that he would present proposals to the EU that would allow for this while still preventing the re-emergence of borders on the island of Ireland.
Last week Johnson sent his proposals on the replacement of the Backstop to the EU. They envisage:
- An all-island regulatory zone on the island of Ireland, covering all goods including agrifood. This implies a sea-border between NI and the UK
- This zone is dependent on the approval of the NI Assembly before it comes into existence at the end of the transition period, December 2020, and every four years thereafter. As the consent issue currently seems to be framed, if the Democrat Unionist Party was to object, the zone would not come about. They will do so.
- NI will leave the EU’s customs union with the rest of the UK, though NI would be granted a wide-range of exemptions from the EU’s customs rules. However, no matter how you slice it and dice it, there would still be customs controls between Ireland and Northern Ireland and such controls need infrastructure, no matter where this infrastructure is located.
The details of how the interactions between two different customs territories on the island would be handled would be negotiated after Brexit, during the transition. What would happen if an agreement could not be reached was not specified.
Shortly after the proposals were released, a spokesperson for Manufacturing NI said they would be “worse” for Northern Ireland businesses than crashing out of the EU on 31 October without a deal.
“The Boris plan unveiled today means tariffs north to south meaning farms and agri-food will be decimated,” they said on Twitter. Also means two borders requiring renewal after four years, surveillance in border communities without their consent, checks North/South and West/East, no exemptions, no market access and import VAT. 1% of our manufacturing firms are large businesses. The other 99% are SMEs.”
Yesterday evening, Monday, October 7, the Guardian reported on a leaked EU document which dismissed the Johnson plan on a point-by-point basis.
Were the Johnson proposals to be accepted then the UK would leave the EU and move into a transition period which could run to the end of 2020, or 2022 if the parties agreed.
During the transition, everything would effectively stay the same for the UK, with no disruption to business or unpleasantness for citizens. Time and space would be available to the UK to negotiate whatever future deal it could with the EU.
For the island of Ireland, matters would be different. What the Johnson proposals do is to outsource the pain of Brexit to the neighbouring isle, while the UK gets a trouble-free exit agreement.
For Ireland during the transition matters would also stay the same as now. But post-transition, the DUP would have a veto over the proposed all-island regulatory zone coming into existence. They would also have a veto over its continued existence when the matter came up for review every four years.
To put it another way: a party that represents just 36% of those who voted in NI in the 2017 general election, and just under 10% of the total Ireland electorate, Ireland and Northern Ireland combined, if such a thing existed, would have the decisive say over significant parts of the island economy. Such a proposition would never find takers in the EU.
Further, businesses in both parts of the island would face a future customs border involving differential tariffs and significant amounts of paperwork to move goods across that border. Businesses in the border area would find it difficult to survive. Many have already said so publicly.
As the Guardian report notes the proposed UK customs fallback of no controls, checks and border infrastructure, coupled with the DUP’s veto on Northern Ireland’s alignment with the single market, means that the EU’s internal market would be left wide open for abuse. Smuggling would become rife and the profits from such smuggling would finance a whole new generation committed to the “armed struggle”.
There is no Brexit deal to be done on the basis of Johnson’s proposals. Yes, the DUP veto could be removed and replaced with a simple majority decision in the Northern Ireland Assembly to accept all-island regulatory alignment in the first place, subject to review on the same decision-making basis, say, every ten years. Consultative mechanisms could be devised to allow the Assembly to have a voice in EU rules that affect Northern Ireland.
But there is no way around the disruption that would result from differential customs regimes. Such disruptions cannot be magicked away by wishful thinking or dreams of “alternative arrangements” based on technologies that exist nowhere in the world. If such arrangements did indeed exist then the UK should have no problem signing up to a customs Backstop that would stay in place until such arrangements had been perfected, road-tested and found to work.
It has been suggested that if the EU agreed to a time-limit on the customs Backstop for Northern Ireland, say five years, that could get a Brexit deal over the line. But if the UK negotiates a very light, future trade agreement with the EU, which is what Johnson has signalled is what he wants, that means that the island of Ireland would face a very hard customs border down the line. The pain would just have been postponed. Again, the UK gets what it wants while Ireland takes the hit.
All that stands between a deal between the UK and the EU is UK agreement to a customs Backstop for Northern Ireland. Effectively, membership of the single market for manufactured good and food has been agreed. That takes away part of the border.
If, as we said above, the UK genuinely believes that alternative, technology-based arrangements can be found to obviate the need for a border between two different regimes then it would accept the customs Backstop.
It is the UK’s choice. Accept that NI remains in the EU’s customs union until such time as “alternative arrangements” are proven to work. And if they don’t work, why not ask the people of Northern Ireland what they want?
Finally, a question that politicians opposed to the Backstop might like to consider. If a no-deal Brexit causes widespread disruption across the UK initially the EU might get the blame.
But, when the electorate comes to realise that a deal was on offer and it was blocked by a political party in Northern Ireland that represents just 0.65% of the total British electorate, things might change.
And not for the better for unionists in Northern Ireland.
The truth is, there are very few unionists left in England. And as for Scotland…