09 January 2019

The Government has published proposals on how it will ensure Northern Ireland can influence decisions around the backstop during Brexit. But the new proposal doesn’t provide a way out of the backstop and won’t swing any votes, says Tim Durrant.

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.

Some of the proposals are weaker than the Government suggests

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.  

Some proposals are window-dressing

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.

Comments

Dear Sir,

I have just read your article “The Government’s reassurances on Northern Ireland risk angering more people”.

I am a 65-year-old retired Frenchman, living in the Eastern part of France near the German border, where we have been dealing with border and customs problems – and solutions – for many years since and before the foundation of the EU.

For many reasons, I have shown great interest in the development of the Brexit process from its beginning.

Hence my personal reflection on a workable solution to the Irish border dilemma, that would:
- provide a clear way to exit the backstop;
- or event, prevent the backstop from ever entering into force;
- avoid both a hard border in Northern Ireland and an artificial border in the Irish Sea.

This solution is based on a customs clearance procedure at the “Seller’s” premises (“at domicile”) on both parts of Ireland, applicable to:
a) goods originating from Northern Ireland, entering the Irish Republic and intended for export to the Irish Republic or the rest of EU;
b) goods originating from the Irish Republic, entering Northern Ireland and intended for export to Northern Ireland or rest of the UK.

The advantages are as follows:
- No physical hard border; no checks at the border on the Island;
- No mandatory checks at (air)ports for goods originating from both parts of Ireland, hence no “customs border” between Northern Ireland and the rest of the UK in the Irish Sea;
- Payment of the required taxes and completion of other regulatory checks at the “Seller’s” premises, with use of all computer resources for this purpose, including direct exchanges of data with the customs authorities of both parties.
- Delivery of a “certificate of compliance” with the applicable customs requirements – including standards and tax regulations – according to the destination of the goods.

As regards litigations (standards, contractual conformity of the goods, product liability, etc.), the simplest way would be to grant to the applicant the right to seize the jurisdiction of the place of delivery (effective or contractual) of the goods (hence ultimate competence, either of the European Court of justice in the EU, or of British courts in the UK.

“Compliance with standards and regulations” could even become a matter of private commercial law by inserting a specific clause in the sale contract between Buyer and Seller such as follows:
If Seller is a North Ireland firm and Buyer is located in the Irish Republic:
Seller shall comply at their own expense with the provisions and requirements of all European and Republic of Ireland statutes and subordinate legislation, standards, regulations and directives…
If Buyer is a North Ireland firm and Seller is located in the Irish Republic:
Seller shall comply at their own expense with the provisions and requirements of all Union United Kingdom and North Ireland statutes and subordinate legislation, standards, regulations and directives…

For Seller firms too small or ill equipped to carry out the “clearance at home” procedure, a few clearance facilities could be set up in both parts of the Island, for the purpose of delivering the aforementioned “certificate of compliance” and thus making it possible for these firms to benefit from the same export procedure as described above.

I leave these few ideas to your appreciation, remaining at your disposal for whatever purpose it may serve.
Best regards,
A. DENIS