In an attempt to reassure MPs, including the Democratic Unionist Party, about what the backstop might mean for Northern Ireland, the Government has published a series of ‘Commitments to Northern Ireland’.
The Government’s paper sets out some new ideas, but can only offer unilateral assurances on how the UK will behave while the backstop operates. As such, it cannot offer the thing its critics want: a cast-iron guarantee the UK as a whole can leave the backstop when it chooses.
Most eye-catchingly, the Government promises to legislate (presumably in the upcoming Withdrawal Agreement Bill) for “a mandatory process of consultation with the Northern Ireland Assembly” on whether the UK should enter the backstop or extend the transition period to December 2022 if no future relationship has been negotiated by the end of 2020.
But the UK cannot unilaterally decide to opt for the transition extension – that needs the consent of the EU 27 – so Northern Ireland may not get its preference.
There is a commitment to “no divergence in the rules applied” in the areas covered by the backstop. This suggests the UK will follow all the Single Market rules in the backstop to ensure that there is no difference between rules in Northern Ireland and the rest of the country.
This is the first time the Government has made such an explicit commitment, at least since the 'common rulebook' of the Chequers white paper was rejected by the EU, but it stops short of offering legislation. In any case, the current Government cannot commit its successor to any particular course of action.
The Government also commits to legislating to ensure that Northern Irish businesses maintain their “unfettered access” to the rest of the UK market. While this may be good political theatre, it is not clear that such legislation is required, and again it cannot bind subsequent parliaments.
The paper says the Government will sign a Memorandum of Understanding with the Northern Ireland Executive over its role in the governance of the backstop, should it come into force. But the DUP has already called the proposals “cosmetic and meaningless”.
Under the terms of the Withdrawal Agreement, any updates to existing EU law that applies to Northern Ireland under the backstop will have to be accepted automatically. The Government acknowledges this and says it will legislate to require the agreement of the Northern Ireland Assembly to any new EU legislation being included in the backstop. But once outside the EU, the UK will have no way of influencing whether Brussels changes its rules via new or existing legislation.
Disagreements over new legislation could of course be taken to the Specialised Committee, but the EU has been clear that, as a non-member state, the UK will not be able to curtail its legislative autonomy.
While the Government’s paper stresses the importance of taking on the views of the Northern Ireland Assembly and Executive, it fails to mention that neither body exists at the moment – today marks two years since the Executive collapsed.
The proposals also could anger the other devolved legislatures in the UK, given the special role that the Northern Irish Assembly will have in expressing an opinion on whether the UK should seek to extend the transition or move to the backstop arrangement, and in potentially forming part of the UK representation to the governance structures. Scottish and Welsh politicians are already critical of the Government for ignoring their concerns around Brexit.
No matter how well-intentioned or well-crafted the commitments to Northern Ireland, the fact is they do not address the fundamental issue of leaving the backstop. Many Conservative Brexiteers want certainty that the UK won’t be stuck in this arrangement forever. They won’t find that certainty in this attempt.