Irish backstop –
This could be a Blackadder Brexit. We have a cunning plan, say the EU and the UK.
Baldrick is not at the helm but the many unanswered questions in the porous Brexit agreement do not inspire confidence.
Parts of how the proposed UK’s exit deal will work in practice are so uncertain that it is hard to see how Brussels could claim that the reworked treaty is a “legally operable solution” that passes muster.
In the head-spinning fix to the customs conundrum to avoid a hard Irish border, it has been agreed that Northern Ireland will be legally out of the EU customs union but will practically remain in it.
Yet the absence of key details around how this will work leaves readers of the text – and, worryingly, specialists in customs – puzzled about how it would operate in practice.
Detail has become a casualty in the rush to act on the unexpected goodwill discovered between Taoiseach Leo Varadkar and British prime minister Boris Johnson to seek out a deal at a wedding venue on the Wirral the week before last.
In American football terms, the decision to push the crucial operational detail of how the plan will work into the 14-month transition period and onto the desk of a future “joint committee” of EU and UK officials amounts to a hopeful Hail Mary pass deep into the end zone as the clock shows just seconds to a no deal.
The catastrophe of a disorderly exit on Ireland and the UK seems to have concentrated minds and encouraged both sides to cross red lines and embrace previously unacceptable propositions.
The agreement, in reality, reflects the fact that neither side was ready for a no-deal Brexit so concessions had to be made to seal a deal.
And significant concessions were made by both sides.
Where the EU had stubbornly refused to reopen the withdrawal agreement and the once-sacrosanct backstop, Brussels and Dublin have exchanged that insurance policy for a permanent solution – a “front stop” or “long stop”, take your pick – and swapped a clean, default solution for an untidy, deferred alternative.
The Government, which for months refused to accept any kind of time limit on the backstop, have essentially set a seven-year expiration date on a no-hard-border plan and a date – December 31st, 2026 – when Northern Ireland could exit the terms of this arrangement with no guarantee to maintain an open border.
Varadkar has conceded this point, acknowledging that there was an “outside chance” of a hard border reappearing on the island of Ireland in the next decade but said that this was a risk he was happy to stand over as the price of democracy and giving Northern Ireland’s political representatives a say on their future.
But Northern Ireland’s dysfunctional politics would be bedevilled with what is essentially a Brexit vote every four years or eight years if there is cross-community support to remain in this complex arrangement.
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Under this plan, Northern Ireland could have to live with Brexit forever and deal with a perennial contentious vote to respond to the complicated fallout from the global trade adventures of the UK government.
Promises by the Johnson government not to undercut the EU were a massive concession this week from the British but they are contained in the accompanying political declaration on future relations, which – unlike the international treaty covering the terms of the UK’s exit from the EU – carries no legal weight.
The more the UK diverges from EU rules in future, the more complicated the checks and controls on goods heading from Britain into Northern Ireland and the heavier the burden on Northern Irish businesses.
A glaring omission from the withdrawal agreement is how the democratic consent clause would operate if the Stormont Assembly is not sitting. This problem – an obvious one given that the assembly has not sat since January 2017 – is addressed instead in the UK’s unilateral declaration, which is also not legally binding. It offers no specifics beyond an agreement to create an alternative democratic consent process in a special vote.
With the backstop gone, a large can has been kicked down the road on what would happen if Northern Ireland actually votes to leave the arrangements. This would trigger a two-year cooling period – late 2024 is the earliest this could happen – and start the clock on finding a solution again to avoid a hard border.
Responsibility for this onerous task would again fall to the omnipotent joint committee. Given that it has taken more than three years since the Brexit vote to devise a solution to the Irish border problem, a two-year window seems far too optimistic, particularly if the UK moves far from the EU “playing field”.
Brussels has made big concessions too.
The idea of the UK collecting tariffs on behalf of the EU was dismissed by the EU’s chief Brexit negotiator Michel Barnier in September 2018, yet this is exactly what Brussels has agreed to. “We cannot relinquish control of our external borders and the revenue there to a third country – that’s not legal,” he said at the time.
Boris Johnson also rubbished the proposal when Theresa May floated it last year in a customs partnership – a modified version of which he is agreed for Northern Ireland in his own Brexit deal. Johnson rejected the idea of the UK collecting tariffs for the EU as a “crazy system” and “totally untried”.
Yet this is exactly what the UK has agreed to.
The biggest concession of all has come from Johnson with the British prime minister agreeing to an Irish Sea border which he said, not even a year ago, that no British Conservative government could ever agree to.
In a cruel twist for the DUP, who plan to vote against his deal on Saturday, Johnson made this declaration as a guest speaker at their party conference in Belfast.
Even Blackadder would be hard pressed to show that level of cunning.
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