Why I still have moments of missing the Northern Ireland backstop

On 31^st January Brexit was supposed to be settled, the oven-ready deal heated and served to a grateful public that would then move on to other domestic concerns such as infrastructure and the NHS. Brexit would never be mentioned again, even as a new relationship was formed with the EU.

Well coronavirus is certainly taking Brexit off the front pages, but that does not mean we have escaped its consequences. Even worse, we’re now arguing about both the Withdrawal Agreement and the future relationship, plus the process that led to the deal we signed. With serious questions about the UK’s future relationship with the EU, especially with regard to Northern Ireland, it really doesn’t feel like much has been resolved to date. Perhaps it would all have been a lot easier if we had signed up for the original backstop?

I supported the original UK-wide backstop, unpopular with the UK parliament, Northern Ireland’s Democratic Unionist Party, and as it happens, the EU. It would have protected relations both east-west and north-south to a large degree, of crucial importance to the different communities of Northern Ireland. That would have come at the cost of the UK’s power to fully diverge from the EU, at least while a longer-term relationship was negotiated. It would however have provided a stable base for those negotiations.

As is now being repeatedly shown, the different deal that we eventually signed with the EU is problematic. The UK government avoided a hard Irish land border but agreed to customs and regulatory checks in the Irish Sea. In public it now refuses to accept this, though the Withdrawal Agreement is clear that they will be required. It is also seeking to withdraw from all EU regulatory bodies, even though that leaves the status of UK and EU bodies in Northern Ireland unclear. For example, pharmaceutical products available in Northern Ireland will fall within the remit of the European Medicines Agency, which will leave the UK’s Medicines and Healthcare products Regulatory Agency potentially managing two different systems with unknown operating issues.

The task of implementing the new Northern Ireland protocol will fall to a UK-EU committee established under the Withdrawal Agreement, which is scheduled to meet for the first time at the end of March. It will only have nine months to iron out such matters, with worrying signs that at least some of that time will be taken up with the UK refusing to accept what it has already signed up to. UK-wide businesses are warning that they need to start putting in place new systems and operating procedures now, but cannot do so until they have some more clarity on future conditions. The EU’s vehement insistence that all relevant information is laid out in the protocol is as unhelpful as the UK’s denials in terms of such preparation. Much needs to be decided.

The original backstop would have avoided this immediate problem, in that there would have been no changes to trade between Great Britain and Northern Ireland while a future relationship was negotiated. Leaving the EU in this way would not of course have been a simple process, and we would no doubt have had multiple complaints that this was not really Brexit. But we’d have had a lot more certainty.

Is what we ended up with sensible? The Withdrawal Agreement as signed did not definitively mean divergence between Great Britain and Northern Ireland. The option has always been available to negotiate a close UK-EU relationship, with some regulatory alignment. This would minimise differences between GB and NI, but has been ruled out in no uncertain terms by the UK government. Some of those involved in the negotiation point out that Britain must diverge significantly if it wants to diverge at all, because of the strength of EU strictures against cherry picking. This contains some truth, but rather like the statements made by the EU last summer that the Withdrawal Agreement could not be reopened, not the whole truth. The EU can show surprising flexibility if it feels it to be in its interests. This debate is, though, a reminder that we have now had four years of UK-EU negotiations and that matters. There are memories, emotions, tangled stories on both sides of the table. The past is likely to be contested territory for some time to come.

A UK-EU trade deal could still help the implementation of the new Northern Ireland protocol, not least in ensuring largely tariff- and quota-free trade between the whole EU and UK. Equally it would be helpful to provide legal certainty to all-Ireland services trade, which currently rests on shaky legal foundations. But it will not help with many other customs and regulatory problems.

The politics of Brexit, the opposition of the Labour Party and Brexiteers, probably always precluded the backstop as originally negotiated. As of now the politics is more settled. That has come at a cost. The new Northern Ireland protocol contains many messy details yet to be resolved, and any resolution will probably be followed by never-ending UK-EU talks, whatever the outcome of this year’s free trade agreement negotiations. A messy Brexit, then. Perhaps that was always likely, but there will always be an element of looking back and wondering: what if the original backstop had been agreed?