“We would be damaging the fabric of the union with regulatory checks and even customs controls between Great Britain and Northern Ireland … No British Conservative government could or should sign up to any such arrangement.”
Those are the words of then backbench MP for Uxbridge and South Ruislip, Boris Johnson, at the DUP conference in November 2018. Nearly a year later, as prime minister, he unveiled a Brexit withdrawal agreement that does precisely that.
The root of the problem lies in the initial Brexit negotiations between the EU and the May government. The EU’s initial proposal was a Northern Ireland-only backstop that would apply only if no free trade agreement had been reached between the EU and the UK after the transition period. After protests from the DUP, Theresa May ruled this out and instead opted for a backstop for the whole United Kingdom.
The backstop came under intense criticism from Brexiteers, who were dissatisfied by Britain’s potential continued membership of the customs union. They were also unhappy, along with the DUP and other unionists, that Northern Ireland would deviate from the rest of the United Kingdom in pursuing de facto single market membership as well.
Among that deal’s most outspoken critics was Boris Johnson, who decried it as “vassal state stuff”, before eventually voting for it when May pledged to resign if it passed. Seeking to negotiate a better deal would become the key tenet of his leadership campaign, and integral to this was his promise to remove the backstop.
In the ensuing negotiations, the Johnson government employed the novel strategy of abandoning it as an emergency measure and instead making it the default position – but for Northern Ireland alone. This is essentially a “front stop” version of the Northern Ireland-only arrangements that characterised early UK/EU negotiations. Boris Johnson is framing this as a new and improved deal. In reality, we have gone backwards.
The appeal of this gambit is that it removes for England, Scotland and Wales the risk of being kept within the Customs Union involuntarily. This has, however, come at a heavy price. Northern Ireland, which, like the rest of the United Kingdom, will leave the customs union and the single market de jure, remains de facto in both. This delineates a very different course from the rest of the union.
The practical implications of establishing this schism in UK internal customs and trade policy are significant. Under Johnson’s treaty, goods moving between Northern Ireland and Great Britain will be subject to customs checks. Goods for which exclusive use within Northern Ireland cannot be demonstrated will be subject to tariffs.
A rebate system has been proposed, where claimants will apply to have tariffs reimbursed, provided they can prove that goods stayed in Northern Ireland. How exactly this nebulous requirement is to be fulfilled is not, however, addressed. Tax revenue collected will belong to the EU, leaving the UK government in the bizarre position of taxing its own internal trade on behalf of a foreign power.
Northern Ireland imports twice as much from Great Britain as it does from the rest of the world, including the Republic of Ireland. This deal imposes cumbersome regulations on such trade between Northern Ireland and Great Britain.
And even if the UK and EU succeed in reaching a trade deal during the transition period, internal customs barriers will still endure in the form of rules of origin requirements, which will impose new red tape even for companies exclusively pursuing domestic trade.
Furthermore, compliance in Northern Ireland will be adjudicated by the European commission and the European court of justice. Brexiteers were concerned by the remaining vestiges of ECJ influence in the UK under May’s deal. This remains in Johnson’s “new” deal, while ECJ influence in Northern Ireland has expanded dramatically. Northern Ireland will also be subject to the EU’s VAT laws, potentially permitting different taxation levels for Northern Ireland to the rest of the UK, without the consent of its people.
The withdrawal agreement may also conflict with the Taxation (Cross-border Trade) Act, passed by parliament in 2018, which states that “it shall be unlawful for Her Majesty’s government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.”
When facing questions from the DUP and others in the House of Commons, Johnson and his Brexit secretary, Stephen Barclay, repeatedly referred to the consent mechanism in the withdrawal agreement as a suitable safeguard for Northern Ireland’s voice.
However, the Stormont assembly will only be able to vote on the terms of its relationship with the Republic of Ireland, the EU at large and Great Britain after four years. Assuming that the backstop concludes in December 2020, it will be 2024 before Northern Ireland’s representatives can vote on these region-specific terms.
When the vote eventually occurs, a majority with cross-community (unionist and nationalist) support will allow for an eight-year extension. Crucially, a simple majority, even without cross-community support, will still result in a four-year extension. If the assembly votes against the arrangements, they nevertheless persist for a further two years.
Therefore, Northern Ireland’s people and government will be unable to do anything about the arrangements for six years. The new version of the deal may also violate the Good Friday agreement, as it enables passage by a simple majority vote, which fundamentally alters the cross-community consent mechanism of the Stormont assembly.
For Northern Ireland, this deal is worse than the one negotiated by Theresa May. It relegates it involuntarily to a second-class partner within the union while also dismantling the internal free market of the United Kingdom. Northern Ireland becomes aligned with the Republic of Ireland at the expense of its relationship with Great Britain, making a united Ireland considerably more likely in the long term.
This is a deal no unionist should support, as Boris Johnson himself once said.