IF THE CORRESPONDENCE between the British prime minister and the head of the European Council was never terribly warm, we have now reached the stage of kiss-offs by open letter.
Johnson has written to Donald Tusk to tell him exactly why it is that he wants the backstop removed – and in doing so, he is demonstrating that the EU is dealing with a very different type of British prime minister.
That said, parts of his letter have been repeated often since his predecessor, Theresa May, first wrote to Tusk on 29 March 2017.
Johnson acknowledges that the UK and Ireland share “uniquely deep ties”. He reiterates that the British government is “unconditionally committed to the spirit and letter” of its obligations under the 1998 Good Friday Agreement.
The principles of the 1998 agreement underpin the peace process. They have transformed the British/Irish, north/south and unionist/nationalist relationships, and these relationships are increasingly under pressure in the tortuous, cantankerous process of the UK’s withdrawal from the EU.
This is the circle that Johnson has to square if he is intent on a hard Brexit that doesn’t throw Northern Ireland into the soup.
How he is planning to do this, according to this letter, is not in a way that many would have expected. That is: Johnson is now expressing a certain sense of patronage over the Agreement.
Indeed, he is going so far as to accuse the EU – and thus the Irish government – of being the ones to pose a threat to it.
Building on this theme, Johnson’s primary objection to the backstop here is that it is “anti-democratic”. The argument goes that if Northern Ireland is to follow EU rules without being involved in making those rules, then its democratic oversight of EU policy-making is drastically curtailed.
This is not a new argument. Unsurprisingly, people from all political hues in Northern Ireland, being those most affected, have expressed concern. Indeed, Sinn Féin has long been lobbying to have MEP representation for Northern Ireland post-Brexit.
It is rather doubtful that if they were to be successful in this venture, the UK government would change its opinion about the backstop. The argument is one of principle as much as practice.
His second argument is that the backstop is inconsistent with the UK’s planned future relationship with the EU, which could be best described as friendly but distant.
‘Detached’
He says that the backstop would see the UK aligned to the customs union, and to the same rules of the single market, as would apply in Northern Ireland to avoid the need for border checks and controls. The alternative would be to see “Northern Ireland gradually detached from the UK economy across a very broad range of areas”.
This is not accurate – the rules that Northern Ireland would be aligned to in order to avoid checks are very specific ones.
Of all the rules that are contained in the single market, the indicative list of rules that would apply to Northern Ireland is less than 50 items long – and the checks would only be on one side i.e. from Great Britain entering Northern Ireland.
The volume of trade between the two in the areas most affected by these rules, plus the fact that this trade has to come through sea ports immediately, makes the means of handling these checks more straightforward.
The capacity for infrastructure and efficiency is there in a way that it is simply not at the land border.
Whether this is more significant for the integrity of the union than, say, having different rules and regimes around education, abortion, welfare or corporation tax rates is a political judgement rather than a legal one.
It is significant, therefore, that Johnson is framing such checks as being a matter of national sovereignty and constitutional integrity, thus upping the stakes for all concerned, especially unionists.
A more important point, however, is that this argument assumes that the backstop would be in play against a background of no UK-EU agreement.
Even a minimal trade agreement would cover many of the areas that the backstop would cover and, in so doing, it would reduce the UK/EU divergence that would give rise to the need for checks.
‘Delicate balance’
Thirdly, Johnson claims that the backstop puts the “delicate balance” achieved by the 1998 Agreement at risk. Although he doesn’t say what this balance is, he says that it would be undermined by the mere fact of “removing control of such large areas of the commercial and economy life of Northern Ireland to an external body”.
The language is again dramatic and it diverts attention from what is actually in the protocol itself.
The Withdrawal Agreement contains mechanisms by which the UK and the EU would jointly monitor the implementation of the backstop. There is a Joint Consultative Working Group, which would be a substantial forum through which Northern Ireland could have a say over what is working and what needs to be addressed.
Of course, inadequacies in the representation of Northern Ireland’s residents, at decision-making level in both Stormont and Westminster, adds a certain irony to these
claims of concern for its future democratic representation in Brussels, in a possible scenario years from now.
Risking the hardest of borders in order to protect the 1998 Agreement is now what both sides are purporting to be doing.
The not insignificant difference, of course, is that the EU is still willing to consider the option of ‘no Brexit’ whereas for Johnson, Brexit is already past the point of no return.
Katy Hayward is a senior fellow of The UK in a Changing Europe centre based at Queen’s University Belfast.
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