The Ghost at the Feast: The Northern Ireland Executive and Assembly and the Brexit backstop

CCC Fellow Jonathan Evershed of University College Cork assess the fallout from the Prime Minister's unhappy appearance at the Salzberg summit. 
 
It is difficult to conclude that the recent Salzburg summit of EU leaders was anything short of a disaster for Theresa May. The Prime Minister suffered what was has been almost universally described as a humiliating dressing down over her failure to produce a workable alternative to the EU Task Force’s proposed legal text for the Irish backstop. And key pillars of her Chequers plan on the future relationship between the UK and the EU were fairly comprehensively rubbished by European Council President, Donald Tusk. 
 
The robustness of Tusk’s tone evidently came as somewhat of a surprise to May, given recent efforts to ‘de-dramatise’ the backstop and the expectation that the EU27 would use the summit as an opportunity to bolster the embattled Prime Minister. The EU has been at pains to demonstrate, as I and others have argued, that the backstop does not – despite government claims and Unionist fears – represent a threat to the constitutional integrity of the Union post-Brexit. A backstop may, in fact, act to secure it. Any sense ahead of the Salzburg summit that May might have been receptive to this line of argument was quickly dispelled, with The Sun newspaper carrying the story that a heated exchange with the DUP had categorically ruled out any softening of the line. 
 
Upon her return to the UK, a visibly furious Theresa May delivered an accusatory statement, challenging EU negotiators to explain how her proposals would undermine the integrity of the single market (which they have already done on numerous occasions) and demanding greater respect from her European counterparts. Repeating her assertion that the EU’s draft text for the Irish backstop is something to which no Prime Minister would ever agree, she went on to reveal that, 
 
“We will set out our alternative [backstop] that preserves the integrity of the UK. And it will be in line with the commitments we made back in December — including the commitment that no new regulatory barriers should be created between Northern Ireland and the rest of the UK unless the Northern Ireland Executive and Assembly agree.”
 
This begs a question: to what extent is this alternative likely to differ from that outlined in June’s technical note on a ‘temporary customs arrangement’ (which would effectively extend the backstop to the whole of the UK for a time-limited period)? This proposal, previously described as the UK government’s alternative to the backstop, has already been rejected by the EU. More viable and Northern Ireland-specific options are arguably now on their way to being made literally illegal, owing to the government’s acceptance of an ERG amendment to its Taxation (Cross-Border Trade) Bill, prohibiting the creation of a separate customs regime across the Irish Sea. What room this leaves May for manoeuvre will be seen if and when her new proposals are brought forward. That these proposals weren’t ready for Salzburg may, itself, be telling? 
 
How May will attempt to answer this question may have been hinted at through her reintroduction of a line of text from the December Joint Report into the discourse. The relevant section of the Joint Report – which has been little referred to since – reads as follows: 
 
“In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”
 
In invoking this passage, May seems to be paving the way to a plan in which a decision on the final shape and scope of the backstop is to be devolved to Northern Ireland. 
 
This suggests an important caveat to May’s claim that regulatory divergence across the Irish Sea is something which ‘no Prime Minister could agree to’. Indeed, the Joint Statement makes explicit that it is agreeable, given the consent of the Northern Ireland Executive and Assembly. Indeed, were it not for the DUP’s last-minute intervention in December 2017, the Prime Minister seemed prepared to agree to it there and then. Her opposition to the EU’s draft backstop text is not and never has been a matter of constitutional principle, but of political horse-trading. It should be constitutionally possible to devolve the decision on the backstop, but presumably this would require a further devolution of powers to the Northern Ireland Assembly and/or a repeal of the ERG amendment? 
 
The proposed deferral of the question of the backstop to Northern Ireland raises other pressing questions. Not least among these is how an Assembly which has not sat for more than 20 months – and with seemingly no prospect of doing so again in the near future – is expected to pass the relevant legislation to give effect to the backstop before the UK leaves the EU in March 2019? This is so obvious a stalling tactic on May’s part as to have been perceived as insulting to the intelligence of her EU counterparts.
 
Even if it were not, agreement between Sinn Féin and the DUP on the terms of a return to power-sharing; the recall of the Assembly; debate and voting on the necessary legislation would all, according to the present schedule for the completion of Brexit negotiations, have to be done and dusted before the European Council meeting in November. Even if there were agreement between the parties on the issue of Brexit, this is an impossibly tight timetable. And of course, such agreement does not exist. This is an issue on which the two largest parties in the Assembly could not be further apart. Devolving the decision on the backstop to Northern Ireland would effectively make reaching agreement on it a pre-condition for the restoration of the Executive. This can only serve to frustrate further any ongoing attempt to restore power-sharing in Northern Ireland. 
 
There is, I think, a credible argument for giving the people of Northern Ireland a final say on an issue which affects them most directly (though it does raise questions about whether and how there should be a comparable offer made to the other devolved governments and legislatures in Wales and Scotland). Northern Ireland’s present devolutionary limbo notwithstanding, in principle, such a proposal would likely make for a more accurate and comprehensive reflection in the Brexit debate of the needs, fears and desires of its citizens than has been afforded by May’s confidence and supply deal with the DUP. Indeed, it is unclear to me whether the Prime Minister’s putative proposal has really given due consideration to Northern Ireland’s growing anti-Brexit majority. Support for some sort of special dispensation for Northern Ireland, in general, and for the EU’s proposed backstop, in particular, is actually the majority view among Northern Ireland’s legislators. In a hypothetical vote in the Assembly on the terms of the backstop, surely it would only mean yet more embarrassment for Theresa May if the regulatory divergence between the UK and Northern Ireland she has consistently claimed is so unacceptable could only be prevented through recourse to a petition of concern? 
 

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Jonathan Evershed's picture
University College Cork
2nd October 2018
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