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21 August 2019updated 08 Sep 2021 8:39am

What Boris Johnson and the Brexiteers get wrong about the backstop

By Mark Durkan

The Good Friday Agreement was not just “agreement between two traditions in Northern Ireland”, as Boris Johnson stated in his letter to Donald Tusk, but a democratic covenant between two traditions in Ireland. It was unquestionably endorsed by referendum – north and south – and is directly reflected in the Irish constitution.

To pretend that the Belfast Agreement has an exclusively UK constitutional standing and must be subordinate to new pan-UK impositions – like the “no differentiation” objection to the backstop – defies reality to a provocative degree.

Not only did a majority in Northern Ireland support Remain, an even bigger majority would reject ‘no deal’. A hard, ‘no deal’ Brexit that very few in Northern Ireland voted for is now being imposed as democratic and the backstop that would accommodate the wishes and interests of the North is opposed as “anti-democratic”. It is also telling that those who feign to fret about the backstop being undemocratic totally dismiss any proposal of a Northern Ireland referendum on it.

The purpose of the backstop is to uphold the Agreement’s mandated precepts and purposes: it is not anti-democratic.

The Prime Minister’s specious line that the Agreement “neither depends upon nor requires a particular customs or regulatory regime” ignores the fact that the removal of the customs border in Ireland not only predated the Agreement in 1998 but the ceasefires in 1994. The prospect of the Single Market and Customs Union removing border manifestations was a salient plank in the then SDLP leader John Hume’s case in his talks with Gerry Adams as far back as 1987-8. The realities of common customs or regulatory regimes were among the conditioners for peace by showing that the security border could also go if violence ended.

Common Irish and British EU membership was taken as a given in the Agreement, with references in all three Strands and both Governments celebrating cooperation “as partners in the European Union”. Indeed, John Hume wanted to make the EU dimension even more explicit but accepted the Eurosceptic stances then expressed by Sinn Fein, the DUP and some in the UUP, could be a vein of dissent damage in the joint referendum.

During the talks the Ulster Unionist Party tried to argue that most North-South considerations occurred in EU frameworks and did not require bespoke cooperation arrangements. In the post-Agreement negotiations to agree the first North-South bodies, the UUP then favoured EU-related remits in terms of funds or regulations. They argued that this would give them good defensive narrative that these were “things we would have to be liaising on through the EU anyway”.

This points to a rarely acknowledged issue about the post-Brexit standing or relevance of some of the existing cross-border bodies established under the Agreement, like the North-South Ministerial Council (NSMC). Will they be rescoped, replaced and/or added to? The political contentions which could emerge about the NSMC’s sectoral formats and implementation bodies will have stemmed from Brexit contrary to claims that it entails no impact on the Agreement or its workings.

Rather than understand real misgivings in democratic Ireland about Brexit’s implications for the island economy, North-South cooperation and citizens’ rights, we have Brexit’s pushers falsely fuming that the backstop to mitigate such concerns violates the Agreement.

They are inducting a new orthodoxy that their Brexit sovereignty trip means that any distinctive treatment of Northern Ireland would assault the UK’s constitutional integrity and so violate the Belfast Agreement.

This new hyper-unionist strand in British politics disregards the unique dimensions the Agreement underscores for Northern Ireland, such as its constitutional status, citizenship entitlements, rights promised, devolution terms and cross-border institutions.

It even differs in terms of future relationships with the EU. Northern Ireland is the only part of the UK that could rejoin the EU without negotiations required under Article 49 of the Lisbon Treaty (by voting for a united Ireland). 

It is also the only part of the UK that will continue to have the right to have its ministers’ views represented at relevant EU meetings post-Brexit via the NSMC. That provision in paragraph 17 of Strand Two is wrongly cited by David Trimble against the backstop. It actually refutes the anti-backstop canard that Northern Ireland would have no means of representation on EU decisions.

We now have the claim that the backstop threatens the Good Friday Agreement by violating the “principle of consent”. This conflates two different applications of “consent” in the Agreement and blends false premises.

The wording of the Agreement – “it would wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people” – is invoked to delegitimise the backstop. This comes from the very people who celebrated when the UK Supreme Court ruled that this particular wording was solely about a democratic choice on the constitutional status as between remaining part of the UK or becoming part of a united Ireland and did not relate to Brexit, even though a clear majority voted to remain.  

The other version of consent in the Agreement was also tested: the Northern Ireland Assembly’s consent for measures affecting devolved interests. Again, the Brexiteers cheered the ruling then that terms of Withdrawal Agreement negotiations were not subject to devolved consent. If neither Brexit, against the voted choice in Northern Ireland, nor its negotiated terms breach the consent provisions of the Agreement, how can the backstop?

The backstop is not an exercise of EU control but an EU concession. This is a point the Minister now in charge of no-deal planning, Michael Gove, repeatedly stressed in his previous role. The backstop is favoured by key sectors in Northern Ireland and supported by a democratic majority. It is insurance for the next stage, not a fixed end state. The very need for it has been confirmed by the endless UK tergiversations on Brexit’s shape, the Agreement’s standing, border implications and now free movement.

Boris Johnson incants “alternative arrangements” like magic words. He is quoting from the language of the backstop which he wants deleted.

These so-called alternative arrangements should not just be about putative technological solutions. The EU has said it will be open to “flexible and creative” solutions for Northern Ireland. These could include utilising the underused bandwidth in Strands 2 and 3.

The aim should be 360-degree protection, not only against a hard border, but against future incipient borderism stemming from either UK or EU impositions. If the Brexiters were sincere in their stated concern that it will be the EU not the UK which will impose border conditions, they would accept the backstop to forestall that risk and use the next stage negotiations to agree sustainable successor arrangements.

We have seen that the UK’s approach to Brexit could not be relied upon with the backstop it negotiated and agreed, designed to cater to their self-imposed red lines and which the Prime Minister himself voted for (in voting for Withdrawal Agreement). How could the UK Government or Parliament be trusted without the backstop given the impulsive imperatives of new Brexiteer red lines and dissolvable promises?

As an insurance policy, the backstop guards against detriment to the existing flows and cooperation across the island. It does not guarantee the development of future options within the prospectus of the Agreement. Those who value the backstop do not prize it as an endgame trap.  Brexiteers should know that we will also want new understandings and undertakings in the negotiations on future relations to succeed to succeed the backstop.  These can be rooted in the Belfast Agreement’s provisions and routed through its processes.

Pursuing alternative arrangements will not just be about technical or diplomatic issues, but political choices too. The backstop, with the need to better it, helps to provide the balance of insurance, interests and incentives that will be needed to creatively explore the Good Friday Agreement and its institutions as a framework to maintain the island economy, north-south cooperation and British-Irish partnership in future relationship negotiations.

Mark Durkan was the deputy First Minister of Northern Ireland 2001-2 and a Good Friday Agreement negotiator. He was the Leader of the SDLP and the MP for Foyle 2005-2017

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