By January, Northern Ireland will almost certainly have been without a devolved government for two years, compounding the sense of crisis and frustration around the Irish border and Brexit.
While the Conservative government has so far refused to introduce direct-rule, the Secretary of State for Northern Ireland, Karen Bradley, drafted a Northern Ireland (Executive Formation and Exercise of Functions) Bill that will have its second reading in the House of Commons today. This messy piece of legislation, designed to grant civil servants powers previously exercised by Stormont ministers, narrowly avoided becoming embroiled in the ongoing Tory civil war over Brexit.
Steve Baker, an influential member of the arch-Brexiteer European Research Group (ERG), eventually withdrew a number of amendments to the Bill intended to hobble the EU’s proposals for an Irish border “backstop” and ensure that the province cannot be divided economically and politically from the rest of the UK. Baker cited “procedural” reasons, but another Conservative MP told The Times that the DUP had pulled its support for the measures.
There were certainly technical difficulties with the amendments, which would have prevented senior officials from using their powers to agree distinct arrangements for the province’s relationship with the EU. Mrs Bradley’s Bill is time-limited and will lapse in March next year, it concerns the governance of Northern Ireland rather than Brexit specifically and it is likely to be superseded by any eventual withdrawal deal, if it is passed by Parliament.
The tougher language used by Theresa May on Monday, when she rejected the European Commission’s bid to keep Ulster in the Single Market and customs union, may also have helped. The Prime Minister set out four tests that must be met before her government will endorse a backstop, centring on Brussels’ acceptance of a legally binding, temporary customs arrangement between the EU and the whole UK, and full access for Northern Irish businesses to their biggest market, in Great Britain. In the absence of such an arrangement, she suggests that the transition period could be lengthened beyond 2020.
Some politicians, including prominent unionists, have expressed cynicism about the ERG’s motives when it comes to Northern Ireland. They imply that the hard-Brexit wing of the Conservative party is interested in the border only as a convenient pretext to attack Mrs May and push for a cleaner break from the EU.
Yet, the instinct to preserve the economic and political integrity of the UK is unimpeachable and is in line with the Prime Minister’s existing commitments to avoid an internal economic border down the Irish Sea. The group previously amended Brexit legislation, so that Northern Ireland cannot legally be subject to a separate customs regime, but the position on regulations has always been less clear.
If Northern Ireland remains in the Single Market only, while the rest of the UK leaves, tariffs may not be affected, but the damage to the Union could be just as serious. Even if Great Britain was also signed up to parts of a “common rulebook”, the sheer volume of secondary legislation generated by Brussels would surely cause the province’s economy and politics to diverge significantly from the mainland. While the focus has been on maintaining a “seamless” border on the island of Ireland, Northern Irish businesses sell four times more to Great Britain than the Republic of Ireland.
The province would take its rules from Brussels rather than Westminster, without representation, direct or indirect, in the EU’s institutions. Inevitably, Northern Irish lobby groups and companies would start to look to the Republic to represent their interests, distancing unionists yet further from British economic and political life. This process would take place without any democratic endorsement, contrary to the “principle of consent” in the Belfast Agreement that is supposed to underpin Northern Ireland’s place in the UK.
Baker and May have both suggested that the Stormont Assembly could choose when to diverge from British market rules and when to remain aligned with the Single Market. Even this scenario raises serious problems. Currently, an inquiry is being conducted into devolved ministers’ mishandling of the RHI renewable heating scheme, that could have been copied and pasted directly from the English model.
The idea that Stormont MLAs, or the province’s civil servants, have the capacity to manage Northern Ireland’s regulatory environment, or avoid every economic debate becoming an Orange and Green issue, is fanciful.
For voters in Great Britain, it must be tempting to conclude that distancing a dysfunctional province from the rest of the country could be a price worth paying to secure a favourable deal with the EU. In Scotland though, separatists in the SNP are watching developments with the “backstop” closely, as they plot to loosen their own ties with Westminster. Scottish Conservative MPs are alive to the threat that a bad deal on Northern Ireland could pose to the whole UK.
In the excitable atmosphere around Brexit, the media has reported daily on new developments with the border, but, taking a clam step back, little has changed for months.
Michel Barnier and his Brexit Task Force have moderated their language and talked up “de-dramatised” solutions, but they still maintain that Northern Ireland must stay in the EU single market and customs union, in the absence of a trade deal that avoids new checks and infrastructure at the Irish land border. The government insists that any customs arrangement must be temporary and UK wide, while it says a ‘common rulebook’ on goods removes the need for a regulatory frontier.
Each side has repeatedly tweaked and repackaged its position, but that isn’t the same as moving toward a mutually acceptable compromise.
Remainers, the EU and the Irish government like to insinuate that Britain has reneged on its commitment to a “backstop”. However, they falsely conflate the text of December’s “joint report” on progress in the negotiations, which was signed off by both sides, with the EU Commission’s interpretation, published in March, to which Theresa May said no British prime minister could ever agree.
Mrs May says that her government remains committed to leaving the EU customs union and single market and that the whole UK will leave at the same time. It is not unreasonable for politicians, in the Conservative Party or the DUP, to expect these promises to be kept, even if it makes an agreement more difficult to reach.
If a deal is finally brokered, it mustn’t be at the expense of the integrity of the UK.