Boris and the DUP put Northern Ireland’s place in the UK up for negotiation

Last October, a Bloomberg reporter asked Arlene Foster whether she could accept differences in product regulations between Great Britain and Northern Ireland, as part of a Brexit deal.

The DUP leader was unequivocal. “That has been our one red line,” she insisted, “we cannot have either a customs border or a regulatory border down the Irish Sea because that would make us separate from the United Kingdom. That doesn’t work from a constitutional perspective and it doesn’t work from an economic perspective either.”

One year later, Foster’s party spectacularly dropped its “one red line” and accepted, in theory at least, checks down the Irish Sea. Boris Johnson’s proposals for replacing the backstop, which the government submitted to the EU Commission last week, are quite explicit about creating an internal-UK border for goods in transit between the British mainland and Ulster.

According to section 9 of the government’s explanatory note, “traders moving goods from Great Britain to Northern Ireland would need to notify the relevant authorities before entering Northern Ireland in order to provide the appropriate information to undertake the appropriate checks.”

The province would leave the EU customs union with the rest of the UK, avoiding the need for an Irish Sea customs border, but, effectively, it would remain in the single market. Remarkably, Arlene Foster offered wholehearted support for this plan, describing it as a “serious and sensible way forward”.

The DUP’s main unionist rival, the UUP, has no doubts that this amounts to a momentous U-turn. “I have no idea what threats have been made or promises offered to persuade the DUP to accept these proposals,” the party’s former leader, Lord Empey, observed, “but I am very clear that they represent a complete abandonment of the DUP’s previous position that there should be no border in the Irish Sea. I am shocked that anybody describing themselves as a unionist would be not simply accepting but advocating a border up the Irish Sea.”

In mitigation, the DUP points to provisions in the explanatory note that require the Stormont Assembly to consent to Northern Ireland remaining in the single market for agriculture and goods. According to the text, the devolved institutions, which haven’t operated since January 2017, after a row between Sinn Féin and the DUP, would get their say “before the end of the transition period and every four years afterwards.”

Arlene Foster and her colleagues believe this process must involve a cross-community vote, meaning they can veto the arrangements. Without Stormont’s consent, they understand regulations in Northern Ireland would stay in line with the rest of the UK. This is a risky and confusing position, for a number of reasons.

The text states only that “the UK will provide an opportunity for democratic consent”. It doesn’t describe the method by which it might be sought and it doesn’t stipulate that it would involve the “petition of concern” mechanism that gives Northern Ireland’s two main communities vetoes over controversial legislation.

If the Assembly is still not sitting by the time a vote is required in 2020, it cannot vote on the matter and its rules will not apply. The prime minister had an opportunity in the House of Commons to explain in more detail how the “consent” paragraphs might work, but he declined to do so.

Before its publication, the government briefed energetically that its backstop replacement comprised a “final offer” to the EU, with the implication that the only alternative was “no deal”. After Brussels received the letter, Boris Johnson quickly started talking again about a “landing zone”. There is a shared understanding between the EU and the UK that these documents are the basis for a final negotiation rather than an ultimatum.

Brussels will ask for more and it seems likely that the British government has not quite reached the limit of what it’s prepared to give. For the DUP, that is ominous, because these plans already have the potential to drive an economic, political and social wedge between Northern Ireland and the rest of the UK.

Might Brussels demand that the requirement for consent is balanced the other way, with the province staying aligned with the EU, unless Stormont decides otherwise? The Brexit Secretary, Stephen Barclay, told Andrew Marr yesterday that the government wants intensive negotiations, during which it “could look at” and “discuss” the mechanism for providing consent.

Leo Varadkar and other European leaders spoke about changing the deal, with a view to removing the prospect of customs checks between Northern Ireland and the Republic. Could elements of a customs border in the Irish Sea make a comeback? Many well-informed commentators say that customs is Boris’s new red line, but now that the government has made its offer and compromised its principles, who can say what it is prepared ultimately to accept?

For unionists, whether they’re in Ulster or Great Britain, the most dangerous aspect of these proposals is that they demolish the idea that Northern Ireland must leave the EU on the same terms, or very close to the same terms, as the rest of the country. They destroy an important part of the rationale for opposing the backstop in the first place.

The province buys six times more goods from the mainland that it buys from the Republic of Ireland. Yet, the government and the DUP are volunteering to create trade barriers between two regions of the UK, to protect the Irish nationalist fantasy that there is an “all-Ireland economy”. And it’s a sign of how detached the debate has become from reality, how much it is grounded in the assumptions of the EU, that this extraordinary concession is cast by some commentators as a sop to the DUP.

On a superficial level, it seems perfectly reasonable to argue that compromise is required by both sides to reach an agreement. But the government is proposing to damage the Union in the knowledge that even this capitulation is unlikely to satisfy Dublin or Brussels.

The clear implication, from both Boris Johnson and the DUP, is that Northern Ireland’s place in the UK is up for negotiation.

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