BREXIT UPDATE: PART 1: THE NORTHERN IRELAND BACKSTOP

Last Tuesday (January 15) the British House of Commons rejected Theresa May’s Brexit deal by 230 votes.  The parliamentary defeat was the largest sustained by any British government in history; the previous record was held by Ramsay Macdonald in 1924, who lost by 166 votes.  Why was the deal defeated – and by such a massive majority?

THE NORTHERN IRELAND BACKSTOP

The crux of the deal’s rejection by Parliament is the Northern Ireland backstop. What is the Northern Ireland backstop?

After Brexit, Ireland will remain in the EU, but Northern Ireland, which is part of Britain, will leave.  The one thing that is agreed by everyone is that, under any Brexit deal, the border between Ireland and Northern Ireland must be kept open – ie no passports, checks or controls.  An open Irish border is at the basis of the Good Friday peace agreement between Northern Ireland’s mainly Catholic Nationalists/Republicans ( who want a united Ireland) and mainly Protestant Unionists/Loyalists (who want Northern Ireland to remain for ever part of Britain).  If the Irish border is closed, the hard-won and delicate Northern Ireland peace process could unravel.  So the border must be kept open, whatever happens.  The big question is: how do you preserve an open border between an EU state and its non-EU neighbour?

One proposed answer (albeit regarded as an interim expedient) to this question is the backstop.  It is a provision that only comes into effect if Britain leaves the EU without securing an all-encompassing deal (a permanent solution to the Irish border question is still to be negotiated) – hence the name “backstop”, which means something which can be relied upon as a safeguard in case of emergency.

Before continuing with the explanation of the backstop, two factors should be taken into account:  1) Since losing the Conservatives’ parliamentary majority in the June 2017 snap election, the Prime Minister, Theresa May, and her government have been propped up by the votes of the Democratic Unionist Party (DUP),with whom the government has a ”confidence and supply” agreement.  The DUP is a hard-line Northern Ireland Protestant Unionist/Loyalist party;  2) In order to appease the hard-Brexit-supporting right wing of her Conservative party, May laid down, at the start of the Brexit negotiations with EU leaders, her “red lines”, which include the decision that Britain would not remain in the Customs Union (instead, May said, Britain would seek some kind of “associate membership”) or the Single Market.

To try to resolve the Irish border question, the EU initially proposed that Northern Ireland alone should remain in the EU Customs Union and large parts of the Single Market.  Theresa May could not agree to this, because to the DUP – upon whom her government depends to stay in power — any separation between Northern Ireland and the rest of Britain is the first step towards a united Ireland, which to the DUP is total anathema.  May therefore proposed that the whole of Britain should remain temporarily in the Customs Union.  Her proposal, however, contained no mention of the Single Market.  The EU leaders insisted that Northern Ireland must comply with the rules and regulations of the Single Market.  Having already compromised on one “red line”, Theresa May couldn’t compromise on the other one too; she could not agree to the whole of Britain remaining temporarily in the Single Market as well.  It seemed for a time as though the backstop was going to prove a sticking-point in reaching any deal at all.  But eventually a deal was agreed upon according to which 1) the whole of Britain would remain temporarily in a customs union with the EU (Northern Ireland in the full Customs Union and the rest of Britain in a separate customs union with the EU, which means some goods entering Northern Ireland from the rest of Britain would require declarations, but not checks); 2) some goods entering Northern Ireland from the rest of  Britain would be subject to checks, to bring Northern Ireland into compliance with Single Market regulations.

The backstop was described by the DUP as a “betrayal”; they cannot accept any separation at all, however small, between Northern Ireland and the rest of Britain.  And the Conservative right-wing Brexiteers were concerned that Britain’s “temporary” stay in a customs union might prove to be permanent.  The fears of both the DUP and the Brexiteers were confirmed when the full legal advice on the deal that had been provided to the government by the Attorney-General was published.  The government had at first refused to publish the advice in full, but was forced to do so when found to be in contempt of Parliament (the first time this had happened to any government in British history).

The full advice concluded that under international law the backstop “would endure indefinitely until a superseding agreement took its place” and confirmed that Northern Ireland would be treated differently from the rest of Britain.   Britain could not leave the backstop unilaterally, only with the agreement of the EU.  It appeared also that it was possible for the EU to keep Northern Ireland permanently in the full Customs Union after the rest of Britain had left its own customs union. The DUP called the advice “devastating”.  Many Conservative MPs made it clear they could not support the deal.

The deal was too “soft” for Brexiteers but too “hard” for Remain-supporting Conservative and Labour MPs.   The Labour Party leadership said the deal had failed Labour’s six tests, which are: 1) does it ensure a strong and collaborative future relationship with the EU? 2) Does it deliver the exact same benefits as we currently have as members of the Single Market and Customs Union? 3) Does it ensure the fair management of migration in the interests of the economy and communities? 4)  Does it defend rights and protections and prevent a race to the bottom?  5) Does it protect national security and our capacity to tackle cross-border crime? 6) Does it deliver for all nations and regions of the UK?:

The deal was due to be voted on by Parliament on December 11 2018, after a week-long debate.   But it became so clear that the government was heading for a massive defeat that, on December 10, Theresa May postponed the vote to the second week in January.  According to the Brexit calendar, the deal had to be voted on by January 21; Britain leaves the EU on March 29.

On December 12, May faced a no-confidence vote from her own party, secured by rebel Brexiteer Conservative MPs.  She survived by 83 votes, but whatever authority she had left was severely weakened – which she acknowledged by pledging that she would not lead the Conservative Party into the next general election.  She spent the remaining time before Christmas flying around Europe meeting EU leaders whom she begged to renegotiate the backstop. They promised clarifications and assurances but no substantial changes.

After a welcome respite for the British people over the Christmas holiday, the Brexit pantomime resumed.  This brings us back to where we started:  January 15, when the vote was finally held and the government sustained its catastrophic defeat.  The story – with its curious mixture of high drama, farce and the mind-numbingly arcane minutiae of EU bureaucratic red tape — will be taken up in the next Brexit Update.