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Will Boris Johnson’s New Deal Break The Brexit Stalemate?

Boris Johnson Brexit

Another autumn, another deal between the United Kingdom and European Union for the former to leave the latter in a negotiated Brexit. But will this deal actually pass, or will it become another instance of “same song, second verse?”

As with the deal former Prime Minister Theresa May negotiated last November, the status of Northern Ireland continues to play a key role in the dispute. While May’s successor, Boris Johnson, took a different tack than May did to resolve the Northern Irish question, he may find himself with the same outcome.

Border Questions

Ironically for an island nation, the prime negotiating dispute over Brexit regards geography. Part of the United Kingdom (Northern Ireland) shares an island with an independent country (the Republic of Ireland). If the UK leaves the EU, then Northern Ireland would have a different regulatory and customs regime than the Republic of Ireland to its south.

But people of all political parties in both Northern Ireland and the Republic want to avoid a “hard border”—passport controls, customs checks, and the like—between the two, because it would undermine the 1998 Good Friday Agreement and the Northern Ireland peace process.

Last November’s UK-EU withdrawal agreement resolved the issue through a “backstop.” Unless other arrangements had been established to resolve the logistical problems related to the Irish border by the end of 2020, the agreement said that “a single customs territory between the [European] Union and the United Kingdom” would come into place.

Conservative Brexit supporters found the “backstop” loathsome. In their view, tying Britain to a customs union with the EU—which Britain could not exit without the EU’s consent—represented the worst of all possible worlds: Continued subservience to Europe’s rules and demands, without a seat at the negotiating table to develop those EU processes. The “backstop” largely led to the three defeats May’s Brexit deal suffered in Parliament.

A Less United Kingdom?

In negotiating changes to May’s withdrawal agreement, Johnson scrapped the “backstop” by doing what May would not: Accept a customs border—or something approaching it—across the Irish Sea. Under this approach, while Northern Ireland would technically exit from the EU’s customs union, de facto many of the EU rules and regulations would still apply to Northern Ireland but not the rest of the United Kingdom. In practice, this situation means that:

  • Goods must be checked at ports of entry in Northern Ireland;
  • Duty will not have to be paid on all goods entering Northern Ireland from the rest of the UK, but goods “at risk” of entering the EU (i.e., by traveling across the Northern Ireland border to the republic) will have duty withheld;
  • The assistance the UK provides to Northern Irish farmers will be limited, and kept in line with current EU policies; and
  • Northern Ireland must still comply with all the rules of the EU’s single market. UK officials will enforce those rules, but the EU potentially has the right to instruct UK officials on how to do so: “Where the [European] Union representative requests the authorities of the United Kingdom to carry out control measures in individual cases for duly stated reasons, the authorities of the United Kingdom shall carry out those control measures.”

Whereas May’s “backstop” required all of the UK to comply with EU rules, Johnson’s new agreement will require only Northern Ireland to comply. The proposal has already sparked a legal challenge, with campaigners arguing that placing different customs rules on Northern Ireland violates a law passed last year. The concept of dual customs regimes could cause confusion and complexity for businesses operating throughout the United Kingdom—and definitely led to consternation for those in Northern Ireland.

Consent Issues

The Democratic Unionist Party, whose 10 Northern Irish MPs support Johnson’s government, said it would not support his revised agreement. The DUP objects to Northern Ireland’s disparate treatment—remaining subject to EU rules, even as the rest of the UK would not—and retains grave concerns regarding consent.

The new agreement allows the (currently suspended) Northern Ireland Assembly to approve or reject border plans. But the EU withdrawal agreement only requires a simple majority for approval, as opposed to cross-community consent—that is, majority support from both Northern Ireland’s republican community (largely Catholic and aligned with the Republic of Ireland) and its unionist community (largely Protestant and aligned with the UK). With unionist parties in a minority at the Northern Ireland Assembly, they fear that a republican, pro-EU majority will increasingly align Northern Ireland towards Brussels rather than London.

The issue of consent in Northern Ireland could keep Johnson from obtaining the consent of Parliament for his new agreement. With his government lacking a majority, and the 10 DUP MPs claiming they will not vote to support an agreement harming Northern Ireland, the math to win approval for the deal looks almost as difficult as it did for May months ago.

On Thursday, European Commission President Jean-Claude Juncker unsuccessfully tried to ratchet up tensions ahead of the vote. In claiming that European leaders would not agree to a further extension of the Brexit deadline, Juncker hoped to put more pressure on British MPs to approve the deal, because the only alternative would lie in Britain’s chaotic “no deal” exit from the EU at the end of the month. However, the president of the European Council and other officials declined to endorse this hardline stance, saying they would consider another extension should Parliament vote down the agreement.

On Saturday, the House of Commons will hold its first Saturday sitting since the Falkland Islands war 37 years ago, to consider Johnson’s agreement. Opposition leaders have pledged to defeat Johnson’s deal; one has already proposed an amendment calling for an extension of the Brexit deadline and a general election. For both Johnson’s deal and his premiership, Saturday’s votes may prove as consequential as they are close.