The Prime Minister has managed to get rid of his predecessor’s backstop but he has had to agree to something awfully similar to the “Northern Ireland only backstop” that the DUP forced Theresa May to drop last year.
The new Northern Ireland (NI) protocol is lengthy and complex but its main consequences can be spelt out in five points.
Backstop becomes a frontstop
The backstop was agreed in case the UK and the EU failed to agree a long-term trade deal in which the UK retained key aspects of EU customs and single market rules necessary to prevent a hard border. If so, NI would still be covered by them.
The new text drops two paragraphs of the original introductory clauses (page 301) which said that it was the intention of the EU and the UK to replace the backstop with “alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing”.
Far from being a fall back, this “frontstop” will remain in force as long as the NI Assembly agrees. It will be almost impossible to replace if the UK doesn’t want to have the kind of close relationship with the EU that May’s deal implied but which Boris Johnson rejects.
NI de facto in EU customs union
NI will be in the UK customs union but also in the EU customs union for the purposes of cross-border trade. Article 5 of the protocol retains key provisions of the Treaty on the Functioning of the EU concerning its customs union (Articles, 30, 34 & 36) for NI after Brexit. Goods entering NI from Great Britain (GB) will not face customs duties “unless that good is at risk” of going to the EU whether of itself or as part of some other good.
In simple terms, if a company imports goods from GB to supply NI shops, no duty applies. If it imports them with the intent of re-exporting them to the Irish Republic/EU, then duties will apply. If the goods are to be used in another product that will be exported to the Republic/EU, then again duties will apply.
If there is a “risk” of goods from GB subsequently going into the EU, duty will be levied and the company concerned will have to reclaim it from the UK government.
What’s more, the criteria for determining whether goods are at risk of moving into the EU will only be decided after Brexit – by a joint committee of the UK and the EU. This means that the EU will have a veto and can pretty much make the rules as tight as it likes. (See Article 5, para 2).
No unionist veto
The “consent” provisions mean that NI will stay in this arrangement as long as the nationalists want it to; there is no Unionist veto.
Article 18 says it is for the NI Assembly to decide by simple majority whether or not these arrangements should continue. There will be no initial vote, as the DUP had wanted. The first vote would be in five years’ time and then every four years thereafter. It would even be every eight years if there was cross-community support. This is the provision that the DUP hates the most.
Sea border
There will be a sea border between GB and NI. Goods coming into NI will be checked at ports and airports with provision for EU personnel to be present. This will create a customs and regulatory infrastructure that could be a security risk.
VAT-allage
The VAT regime isn’t fully resolved but under Article 8 of the new protocol NI would be subject to the EU’s VAT rules. NI would have to stick to EU VAT rules if they clashed with UK ones. For example, if the UK cuts VAT on domestic fuel and power to zero after Brexit, it would stay at 5% in NI because that’s the EU minimum.
The Prime Minister has retreated dramatically to get this deal. He has dishonoured his promises not to separate NI from the rest of the UK; abandoned giving the DUP a veto; and signed up to an agreement that means NI will be subject to EU laws over which it has no say.
After all that, it may still not pass the House of Commons. It certainly shouldn’t.
The headline was updated on December 3
Edited by James Earley
Wouldn’t it be nice if a sudden bout of seriously mature thinking hits the six counties? That made them see that they’ve been sold down the sewer by the UK’s biggest member England. That the Scots are likely to leave the UK sometime in the near future. That the English economic future doesn’t look particularly rosy whilst the EU, doubtlessly taking a hit but still representing some 450 million people, will be a rather more helpful market for the combined Irish economy. The way out? Drop the UK, Northern Ireland under Belfast as an EU member on its own to keep the DUP feeling safe whilst the catholic faction doesn’t have to swear fealty to the English queen any more and finally can pick up their part of responsibility for ruling the place. The Republic goes on the fine way it’s doing already now, the Irish internal border once more disappears from view and the Irish and Scots economies (and, who knows, the Welsh!) team up to take their place in the European Union. What about England? Well, if the Scots leave the UK there must be a hard border with England for exactly the same reason there must be one between the Republic and Northern Ireland if Johnson gets his “deal” accepted. It would bring the reality of his treason a mite closer to home, though, and that reality might just ram it into Brexiteer heads what stepping out of the EU actually entails. The EU is no longer vaguely visible across the Channel; it is barbed wire and border control posts North of Carlisle and Newcastle, with waiting lorries and holdups for the Andy Capps that brought us this misery and now have to show an iconic blue passport. That would change perception, wouldn’t it?
The stridency of the DUP rejection of the Johnson deal has taken some by surprise. There may be also a darker side to this intransigence. Ms. Foster and her senior advisers are reported to have consulted with Loyalist paramilitaries, including the UDA, UVF and Ulster Resistance earlier in the week and justified the contacts as community consultations. The latter organisation was accused of arms dealing (known as the ‘Paris three’ as they were arrested in a Paris hotel in the company of a South African arms dealer). Allegedly involved in the UR also was Sammy Wilson, the current DUP Brexit spokesman, as well as the father of Ms Little; the DUP MP for Belfast South. It is very concerning that the DUP still to-day feels the need to consult Loyalist paramilitaries before making crucial political decisions on the good of NI and UK as a whole. What a charade in claiming a veto over future Brexit arrangements in the Province!