The Backstop(s)
The initial EU proposal included in the first draft Withdrawal Agreement 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. Barring a deal on free trade that secures a frictionless border, the UK as a whole would remain in a “bare bones” customs union 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.
Ditching The Backstop? Not Quite
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 was informing 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.
The new arrangement for Northern Ireland is not any more an insurance policy that would kick in should the future UK-EU relationship proves 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. A number of 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 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.
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 was 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.