This report from the UK think tank Open Europe looks at finding a way through the backstop impasse.
The UK’s decision to leave the European Union has significant consequences for Northern Ireland and the ‘totality of relationships’ between Great Britain and Ireland as envisaged in the Belfast (Good Friday) Agreement of 1998. The attempt to find a solution to the Northern Ireland border through the ‘backstop’ contained in the Withdrawal Agreement has led to the current impasse. Although MPs had a number of reasons for voting against the Withdrawal Agreement on three occasions, opposition to the backstop was the primary focus of Conservative and DUP MPs.
As Open Europe has pointed out previously, the backstop was always an imperfect solution for the special circumstances of Northern Ireland: The backstop represented an attempt to settle Northern Ireland’s future before the wider UK-EU relationship was decided. In doing so, it seemed to give priority to the protection of the Single Market over the relationship between Great Britain and Northern Ireland – in a way that unsettled Unionists in Northern Ireland. The backstop lacked democratic legitimacy in Northern Ireland and potentially undermined the role of the institutions established under the Belfast (Good Friday) Agreement. By proposing new arrangements for the economic governance of Northern Ireland – on a potentially permanent basis – the Withdrawal Agreement did not meet the same tests for democratic consent and cross-community support as the Belfast Agreement itself. The lack of a time-limit or exit mechanism meant that there was little incentive for the EU and Ireland to find an alternative to the backstop as the negotiations for the future relationship proceeded. This further undermined Unionist confidence in the proposal.
The new Government led by Boris Johnson has highlighted a number of these concerns, signalling a shift from the negotiating position of Theresa May’s Government. The EU – and particularly Ireland – believes that the UK Government is reneging on commitments made in the December 2017 Joint Report and eventually enshrined in the Withdrawal Agreement. However, the EU refused to contemplate alternatives outlined in 2017 and has maintained an absolutist position at the expense of the compromises required to recognise the special circumstances of Northern Ireland. A deal that remains unratified does not provide any reassurance to the people of Northern Ireland. It was always the case that the impasse over the backstop could lead to a No Deal Brexit.
Finding a way out of the current impasse will require compromise on all sides, and a concerted effort to return to a harmonious bilateral relationship between the UK and Ireland. Whether there is a Brexit deal or not, there is a need for greater effort on all sides to look at alternative arrangements to the backstop. This also involves recognising the need for special arrangements for Northern Ireland, but only on a case-by-case basis as agreed by the parties in the Northern Ireland Assembly. The British and the Irish Governments, in particular, need to ensure that the structures are put in place to allow this to happen. There is scope to do so in a way that builds on the framework of the Belfast (Good Friday) Agreement, providing an enhanced role for the institutions established under the three strands of the Agreement.
These would include: Strand One: Developing the Stormont Lock. The principle of giving the Northern Ireland Assembly a role in determining regulatory divergence between Northern Ireland and the rest of the UK has been the missing aspect of the EU’s approach to the backstop. The existing promise of a “Stormont Lock” remains a domestic commitment on the part of the UK Government, but there is a growing recognition that the Assembly should be involved in managing divergence with Great Britain in the future.
Strand Two: Enhancing the role of the North-South Institutions to supervise the development of alternative arrangements. Proposals for finding alternative arrangements to the backstop need to be brought under political control in keeping with the framework of the Belfast (Good Friday) Agreement. As this will involve communities on both sides of the border, the proper sphere for this work to be monitored comes under Strand two of the Agreement.
Strand Three: Reactivating the British-Irish Inter-Governmental Conference (BIIC) with a specific purpose to monitor East-West Trade, to consider options for the restoration of Stormont and to review the operation of the Common Travel Area. Given that Brexit has implications for the ‘totality of relationships’, East-West as well as North-South, there is an obvious opportunity for enhancing the role of the BIIC in the context of Brexit, partly as a means of sustaining routine contact between the two Governments. Specifically, the BIIC could be used as a framework for monitoring East-West trade and advising on questions relating to ports and border infrastructure. Following the precedent of the 1998 Agreement itself, there is room for international mediation in the negotiations on the future relationship as far as they involve Northern Ireland. This could involve the USA or Commonwealth countries. For technical discussions and matters relating to the operation of alternative arrangements, representatives from the WTO could be involved.
A referendum on long-term divergence between Northern Ireland and Great Britain is a last resort. Such a mechanism may be needed to test opinion in Northern Ireland at an appropriate moment but only as a last resort, if it becomes necessary for the Assembly to choose between alignment with the EU or the UK in certain areas. This could take the form of a vote in the Northern Ireland Assembly or a referendum in Northern Ireland to be triggered by the UK Government. The referendum option, which might itself be seen as a proxy for a border poll, would not be viable in the short-term or as a first resort.Read Full Report