The UK government has finally sent the EU its ideas on how to solve the Irish backstop conundrum. While we don’t know what the document contains, the prime minister appears to be proposing an all-Ireland agri-food zone with customs and goods checks away from the border. There would be a ‘Stormont lock’, which would allow the Northern Ireland Assembly to reject any future divergence between Northern Ireland and the UK. That addresses the issue that Northern Ireland could be subject to future EU regulatory change with no power to opt out – and the government hopes that the lock makes a revised Brexit deal acceptable to the DUP.
However, the plan is far from straightforward. There are two ways that the mechanism could work. One, previously proposed by Theresa May, proved unacceptable to Brexiteers while the other – likely to be proposed by Boris Johnson – requires the EU to take a massive gamble. In either case, the processes of the Northern Ireland institutions are likely to pose problems.
One option would be for Northern Ireland to align with certain EU rules (as is required by the backstop) but to be given a veto over the rest of the UK diverging.
That was the version of the ‘Stormont lock’ which Theresa May proposed in an attempt to get her deal through Parliament. In January, she made a commitment to a “strong role” for Stormont before the backstop would be implemented, no divergence between the UK and Northern Ireland on regulations covered by the backstop, and a requirement for UK ministers to seek agreement from the Northern Ireland Assembly before new areas were added.
The DUP rejected the proposals as “cosmetic and meaningless”, and pushed for stronger legal guarantees. This would mean Stormont would have a veto which, if deployed, would keep the UK indefinitely tied into the same EU regulatory regime as Northern Ireland – a prospect which many Brexiters would view as intolerable.
That frosty reception to May’s plans suggest that Johnson has developed a different version of the Stormont lock.
The second option would allow Stormont the opportunity to choose alignment with the UK rather than the EU if there is divergence between the two. This looks to be Johnson’s preferred model.
There is little detail about how this would work in practice; sources suggest that EU law, in agreed areas, would be transposed automatically but that Stormont would be able to withdraw consent at any point. This leaves open the possibility that Northern Ireland could unilaterally decide to diverge from the EU and therefore the Republic of Ireland, a move which would require the introduction of the sort of border checks within the island of Ireland that the backstop is designed to avoid.
Any model of a ‘Stormont lock’ is complicated by Northern Ireland Assembly processes, as any vote would likely be subject to a petition of concern – a procedure through which 30 Assembly members can ensure that a vote can only pass if supported by Members of the Legislative Assembly from both communities. Depending on how the vote were framed, either nationalists or unionists could be afforded a veto. For example, some commentators suggest that Johnson’s plan would make it unlikely that Stormont would ever vote to diverge from the legal default of EU alignment as any move to do so would be blocked by nationalist parties.
But the excitement over what decision-making powers Stormont might be given has overlooked the fact that it hasn’t been making any decisions for the past two and half years. There is no guarantee that the power-sharing executive will be restored. Even if it were, it is far from clear that it could withstand the inevitable disagreements about whether to align with the EU or the UK. Votes on minor EU regulations could become proxies for deeper questions of identity.
Boris Johnson’s proposals were always going to represent a gamble, but perhaps the biggest gamble of all – for both the EU and politicians at Westminster – is to cede a critical democratic role to a body that has not been functioning since early 2017.