Leaving one Union, dividing another: The Irish border, the exit agreement and its implications

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

22nd January 2020

In February 2018, when serving as Foreign Secretary, Boris Johnson was reported telling journalists that ‘the particular problems around the Irish border are being used to drive the whole Brexit argument and effectively to try to frustrate Brexit’. The following year, he rose to the Conservative leadership and office of Prime Minister. In bidding for this role, a central part of the Johnson campaign was his claim that he could overcome the ‘Irish border’ obstacle to UK departure from the EU, without the need for difficult concessions or compromise on the part of the UK. The course of events that followed, and the arrangement eventually arrived at to enable Brexit, suggest that there was more substance to ‘problems around the Irish border’ than his earlier assertion allowed. Indeed (and given the exclusion of the option of revocation of Brexit) there was no solution entirely satisfactory to any of the parties on offer, though the greatest difficulties were always likely to befall the UK. An issue that Johnson previously sought to dismiss may yet cause substantial difficulties for him and his government, as well as the UK and wider world.

The General Election of December 2019 installed a Conservative administration with a substantial House of Commons majority; and with Johnson at its head. Both his position and that of his government are, for the medium term at least, secure. What is less certain in this new environment is the approach the UK will take towards future relations with the EU, with other global powers, and what will be the domestic political and constitutional implications.

Evidence that might provide a basis on which to assess the prospects is scarce. Even were the present Prime Minister less prone to hyperbolic rhetoric, predictions would be difficult. Mr. Johnson has been in office for a relatively short time, making it harder to model his likely behaviour. Moreover, uncertainty and instability are inherent in the course on which he is set, and which the political circumstances he has engineered shapes. Nor is his parliamentary party, significantly changed, a known quantity. For the time being, however, it seems likely to provide him with a degree of latitude and ensure that his programme enjoys a stable majority. Yet, difficult to detect and possibly contradictory internal pressures are likely to exert themselves among the cohort of Conservative MPs. Amid this uncertainty, any fixed point that can at least provide a stable framework for speculation is valuable. It exists in the revised exit agreement.

Objections to the Northern Ireland ‘backstop’ were frequently cited by Conservative MPs at the ‘leave’ end of the party as a reason for voting against the previous exit agreement between the EU and UK (reached in November 2018, but now superseded). In this sense arrangements for Northern Ireland were central to the fall of Theresa May, and to the Johnson ascendancy. He made an insistence on removal of the ‘backstop’ key to his bid for the Conservative leadership and No.10. Johnson insisted he was ready to leave without a deal if the EU did not agree to this demand; and that – in any circumstances – under his leadership, the UK would leave by the then-scheduled date of 31 October.

The complex political, parliamentary and diplomatic manoeuvring that followed led the UK to where it is now: under a Conservative majority government, due to leave the EU after another postponement on 31 January, and on different terms, principally with respect to Northern Ireland, agreed on 17 October. But what are the new arrangements for this territory of the UK, and what are the practical, political and constitutional implications?

An opening point is that there is no longer a ‘backstop’. This observation requires careful qualification. For presentational purposes Johnson was able, among those whose support he needs, to present himself as having delivered on his pledge with regard to the deal with the EU. But the removal of the ‘backstop’ took place mainly in a literal sense. Differential treatment for Northern Ireland within the UK will come into force, not as a last resort in the event of other efforts failing, but as a matter of course, and it is therefore no longer correct to refer to a ‘backstop’. The Northern Ireland provisions will become operative after the transition period, a phase that begins at the point of exit at the end of January 2020, and ends on 31 December – unless there is an extension, against which Johnson has firmly set himself, but which could in theory take place, for up to two years. Whether there is an extension or not, when the transition ends, under the agreement, the Northern Ireland provisions take hold.

The removal of the ‘backstop’, then, might have helped Johnson to secure domestic political success, but it was not a triumph of European diplomacy in as far as it involved the UK trading one concession for another: a contingency arrangement for a definite provision. Furthermore, it has been noted by some observers that, while the UK may have managed to reopen the exit deal under Johnson, it did so by offering to move closer to the starting position of the EU with respect to Northern Ireland. The ‘backstop’ had been an adjustment by the EU to suit requirements set out by the UK itself during the May premiership.

Aside from the question of whether its application was possible or definite, what were the substantive differences between the November 2018 ‘backstop’ and the October 2019 deal? The underlying purpose of both was the same: to prevent the appearance of a ‘hard’ border, comprising checks and physical infrastructure, on the island of Ireland, while allowing the UK to leave the EU as a whole entity while protecting the integrity of the European single market. The ‘backstop’ was intended to ensure these objectives were met should the parties fail to reach agreement on how to achieve them by other means. If it came into force, the backstop was potentially indefinite.

Under the ‘backstop’, the whole of the UK would remain within a customs union with the EU (with an exception for fisheries). The UK would not need to follow changes in European law, but would be committed to maintaining some existing rules and avoiding divergences that would undermine the basic level playing field between it and the EU. The ‘backstop’ did not cover free movement of people, services and capital. There would however be free movement for goods between Northern Ireland, on the one hand, and boththe EU and UK, on the other hand. A higher degree of conformance to EU regulations – in areas such as the environment and agriculture – would be required for Northern Ireland. Objections to the ‘backstop’ included its lack of a time limit; that it would restrict the potential of the UK to diverge from the EU and reach meaningful free trade agreements with other powers; and that it applied different rules to Northern Ireland than those that operated in the remainder of the UK (though as we will see, the revised agreement envisages more distinction between Great Britain and Northern Ireland).

The 2019 agreement sets out to achieve the same basic objectives as the ‘backstop’ by different means. As noted above, it comes into force automatically at the end of the transition period, whether at the close of 2020 or later if there is an extension. Under this arrangement, the UK as a whole (including Northern Ireland) will form a distinct customs territory separate from the EU customs union. The UK will also have the capacity for greater regulatory divergence from the EU than it would under the backstop. As a corollary, Northern Ireland – though formally part of the same customs territory as the UK – will be subject to a range of EU single market regulations, in areas such as state aid, VAT and agriculture. Goods that move from Great Britain to Northern Ireland will be subject to duties if they are likely to move on into the EU single market.

What are the implications of this new agreement? Most obviously, they involve special treatment for Northern Ireland to a greater extent than that envisaged under the backstop. It will be required to align with the EU in a way that Great Britain will not. A consequence of this differential arrangement will be the appearance of a customs barrier inside the UK, between Great Britain and Northern Ireland. A Joint Committee will work out the precise details during the transition period. But – despite the efforts of Johnson to minimise the impact – if properly enforced it seems inevitable that Northern Ireland measures will involve additional bureaucracy, alongside checks of some kind. We should not underestimate the significance of this development for the UK as a state. An internal division of this kind within a single country is exceptional internationally, and presents particular problems from the perspective of the history, culture and politics of the UK.

An important aspect to the formation of the Union, accomplished between the sixteenth and late eighteenth centuries, was that it included within it provisions intended to ensure market harmonisation across the whole territory of Wales,Scotland, Ireland and England. Indeed, this effort at homogeneity through unification would subsequently inspire advocates of European continental integration. The introduction of a barrier of this type is therefore important in itself, and – more widely – a fundamental challenge to the longstanding principle of the Union as a single market.

It was in fact a central tenet of the Belfast/Good Friday Agreement of 1998 that the UK no longer possessed exclusive sovereignty over Northern Ireland. The people of the territory, some of whom felt they belonged to the island of Ireland rather than the UK, would have the final determination on this matter; and the governance of Northern Ireland needed to reflect this character. However, that the whole island was part of the EU served to disguise the true nature of this position. Because of this basis in a shared European order, the question of what would happen in the event of a fundamental divergence between the UK and Republic did not need to be asked. The prospect of Brexit raised precisely this quandary. The answer now reached is that Northern Ireland will become subject to an arrangement that could lead to it aligning with the Republic rather than the UK – a de facto shift towards unification.

It is easy to understand why the Democratic Unionist Party, which opposed the ‘backstop’ also, felt unable to support the new deal. Perhaps some might be puzzled that a government of the Conservative and Unionist Party, which – as it name suggests – has had an historically embedded commitment to the preservation of the integrity of the UK as a single state – might preside over such a measure. That it has done so (and achieved electoral success in the process) is a confirmation of the strength of other tendencies within it. The Conservatives are well-known for prioritising electoral success and being willing to adapt in order to achieve it. Yet historically this quality was accompanied and facilitated by a tendency to eschew ideological rigidity. Johnson himself may lack firm commitments and be willing to adopt whatever position suits his perceived interest at a given time (including over the question of EU membership itself). But within his parliamentary party and among its active membership are those who are more ideologically driven. They have successfully achieved goals both in bringing about Brexit itself and in imposing unquestioning support for Brexit upon Conservative MPs. Now this powerful strand within the Party has other objectives of a populist character in its sights, such as the curtailment of the judiciary in areas including human rights review. Such ends have taken priority over the old objective of preservation of the Union. Indeed, when their power base and the nature of their policy programme is considered, the Conservatives could be viewed at least in part as an English nationalist party (with significant support in Wales also).

The circumstance of a single party government of this nature overseeing a policy as divisive – in territorial and other senses – as Brexit, combined with the introduction of a new and exceptional internal barrier within the UK suggests coming challenges for the Union. It is not clear what strategy the government intends to take over these issues, or indeed if it has one. The future position of Northern Ireland is uncertain. So too is that of Scotland. The Scottish National Party will see political potential in the existence of exceptions for one part of the Union, and incorporate demands for its own allowances into its rhetoric around Brexit as strengthening the case for independence. While exact outcomes are difficult to predict, the significance of combined pressure of this kind should not be underestimated. Compounding it will be already developing arguments about the post-Brexit balance of power between UK and devolved levels, that the Northern Ireland aspects of the exit agreement can only render more complicated.

These tensions will develop against a moving background, involving the wider development of Brexit. During 2020 and beyond, the UK will presumably be simultaneously negotiating free trade agreements with the EU, the US, and any other partners it can find. The political pressures to be able to claim success will be immense. But how much progress can be made, of what kind, and how quickly, remain open questions; as do the precise nature of internal Conservative politics and their impact as events unfold.

The potential contents of any one trade deal will have implications for the others. The exit agreement with the EU includes a commitment in principle by the EU and UK to seek a free trade agreement without tariffs or quotas, and to seek to maintain fair competition through a level playing field. The closer the alignment with the EU, the less the difference between Northern Ireland and Great Britain, and presumably the less onerous will be the bureaucracy and enforcement involved in upholding the parts of the exit agreement dealing with Northern Ireland once they come into force. But espousal of Brexit as a unique opportunity to benefit the UK leads logically to supporting divergence from present regulatory regimes and trading arrangements. To do otherwise might seem implicitly to concede that Brexit entails damage that requires limiting. The domestic political environment could well drive the UK towards a free trade agreement with the US that entails greater alignment with its regulatory approach. This outcome will in turn be likely to mean more distance from the EU – and between Great Britain and Northern Ireland. The recent statement by the Chancellor of the Exchequer (though it did not address the Northern Ireland aspects) is a clear indication that the UK government presently contemplates following such a course.

In the longer term, another aspect of the exit agreement requires consideration. It provides for a consent principle. Under this provision, shortly before the provisions relating to the internal market and customs applying to Northern Ireland have been in force for four years, the Northern Ireland Assembly (assuming it is functioning at the time) will vote on whether or not they should continue. If a simple majority within the Assembly votes for their cessation then, after two years they will no longer apply. If a simple majority supports maintenance of the provisions, then another four-year period commences. If a ‘cross-community’ supermajority is achieved in favour then the provisions will apply for at least another eight years. (For these purposes, ‘cross-community’ means either a majority of all Assembly Members and majorities of both nationalists and unionists; or 60 per cent of all members and at least 40 per cent of nationalists and of unionists.)

The political position, then, is that, at four and possibly eight year intervals thereafter, one of a number of scenarios may manifest themselves. A majority might vote to end the arrangement. That would probably involve the Democratic Unionist Party still being opposed to it and having secured the support of the more moderate Ulster Unionist Party. A simple majority might vote to retain the arrangement. Both these outcomes would presumably please one community and not the other and would therefore be divisive. (A decision to end the provisions would also have consequences for UK relations with the Republic of Ireland and the EU, including negative consequences for trading arrangements.) In the first scenario, nationalists would probably perceive the outcome as the imposition by a unionist alliance of a hard Brexit and a hard border. The second would probably entail the DUP and its supporters regarding themselves as being forced to remain on a path towards a de facto unification and separation from the UK without a referendum, as required by the Belfast/Good Friday Agreement, taking place. The third scenario, in which there was cross-community support for the deal, would suggest movement towards informal unification, with a degree of consensus to support it. There might, however, remain a smaller, alienated group that remained opposed to any such outcome. Any one of these scenarios, depending on how they play out, could be problematic, for Northern Ireland, for the Republic, and for the UK, threatening prosperity, security, territorial integrity, interstate relations. They might also create difficulties for the Prime Minister who once suggested that the border issue was being manipulated as a means of frustrating Brexit.