Amid growing speculation that Boris Johnson is prepared to look again at a Northern Ireland-only backstop, CCC Fellow Jonathan Evershed asks whether and how it might provide a solution to the Brexit logjam.

When Boris Johnson entered 10 Downing Street, it was with the promise that there would be no further negotiation with the EU on the terms of the UK’s withdrawal until the backstop had been entirely and unilaterally removed from the Withdrawal Agreement. Met with the reality of the EU’s (inevitable) refusal to acquiesce to such a demand, this promise has been quickly and quietly broken. ‘Technical’ talks are underway between UK negotiators – led by Johnson’s ‘sherpa’ in Brussels, David Frost – and members of the European Commission’s Article 50 Taskforce, with two meetings held last week and two meetings scheduled for this week. While the tenor and tempo of these talks, and the UK government’s failure to table any substantive text for consideration, may leave considerable room for scepticism about Johnson’s (read ‘Cumming’s’) intentions, there is some sense that they have begun to involve ‘movement’ on both sides.

Around these talks has emerged renewed conversation and tentative speculation about a Northern Ireland-only backstop, which had originally been proposed by the EU in February 2018. Such a backstop formulation was opposed, on the strongest possible terms, by the DUP, on the basis that it would create a customs and regulatory ‘border in the Irish Sea’, and rejected outright by Theresa May. The DUP’s position on the backstop was fundamental in shaping subsequent negotiations around an all-UK backstop. This was something the EU initially ruled out, but to which its negotiators eventually agreed in late 2018. If enacted, the backstop as it appears in the final draft of the Withdrawal Agreement would keep the UK as a whole in the EU’s customs territory, while Northern Ireland would also remain subject to those provisions of the single market required to maintain an open and frictionless border on the island of Ireland. This would require modest and minimally enhanced regulatory checks on some goods entering Northern Ireland from Great Britain (but no such checks for goods travelling the other direction). Despite Theresa May’s promises about a role for Stormont in the implementation and governance of the backstop, and a commitment to full regulatory alignment across the Irish Sea, the DUP maintained its opposition to the backstop until the bitter and unceremonious end of her premiership.

The changing mood music in recent days is therefore noteworthy. To be clear, the DUP has maintained its opposition to any customs or regulatory border in the Irish Sea, though the tone of this opposition has arguably softened. It has also been reported that Johnson has assured his confidence and supply partners that he has rejected a Northern Ireland-only backstop. However, there are signs that the UK government position may be creeping inexorably in that direction (with Johnson re-learning many of those lessons previously learnt by Theresa May in her negotiations with the EU in the process). As Tony Connelly has reported, “Boris Johnson has talked about an all-Ireland animal health and food safety regime, and hinted there such an idea could extend to industrial goods. The problem is that…the more he heads in that direction, the more it starts to look like the backstop.” In short, and as Mary C. Murphy has noted, if Boris Johnson does want a deal with the EU, then a Northern Ireland-only backstop may be the only option left to him.

I, for one, remain doubtful that Johnson’s aim is actually to secure a new deal with the EU at all. However, there may nonetheless be scope for some (highly) cautious optimism that the impasse on the backstop can be overcome, a deal finally secured on the terms of the UK’s exit from the EU, and the looming threat of a no-deal Brexit lifted once-and-for-all. Among the reasons for such hope (such as it is) is the changing and unpredictable arithmetic of a parliament in which the government no longer commands a stable majority. If Stephen Kinnock is right and there are around 50 MPs newly set to support a new deal, including any formulation of the backstop contained there-in, then this could offset both the DUP’s 10 votes and those of the ERG’s self-styled ‘Spartans’.

It is arguable that DUP opposition (and that of Unionists in Northern Ireland more widely) to the backstop was, from the outset, as much an issue of communication, representation and relationship management as it was of constitutional principle. Indeed, political-legal differentiation between Northern Ireland and Great Britain is the norm, rather than the exception, and poses no threat to Northern Ireland’s constitutional position per se. Theresa May’s failure to consult with Arlene Foster before flying to Brussels to conclude phase one of Brexit talks was the original sin, and this hampered future efforts at reassurance and confidence-building. If Johnson is serious about securing agreement, then he must meaningfully and deliberately engage with, and find ways to address, Unionist concerns. Unionist opposition to the backstop is not, I think, insurmountable. Indeed, recent polling has revealed that Unionism is not universally and unequivocally opposed to it. Language is key. And in the end (and perhaps paradoxically) securing the backstop may require dropping it from the Brexit lexicon.