BREXIT UPDATE 46: Johnson's Schrodinger's Backstop: Guest Post by Deborah Maccoby

October 14, 2019

In Uncategorized


On October 2, the day after I posted my last Brexit Update, Boris Johnson publicly outlined — in a letter sent to Jean-Claude Juncker, the President of the European Commission — the UK government’s proposals for an alternative to the Irish backstop.

Summing up his objections to the backstop, Johnson writes:

“The backstop acted as a bridge to a proposed future relationship with the EU in which the UK would be closely integrated with EU customs arrangements and would align with EU law in many areas.  That proposed future relationship is not the goal of the current UK Government.  The Government intends that the future relationship should be based on a Free Trade Agreement in which the UK takes control of its own regulatory affairs and trade policy”.

A reminder of the terms of the backstop:  I wrote in Brexit Update 1:

“the whole of Britain would remain temporarily in a customs union with the EU (Northern Ireland in the full Customs Union and the rest of Britain in a separate customs union with the EU, which means some goods entering Northern Ireland from the rest of Britain would require declarations, but not checks); 2) some goods entering Northern Ireland from the rest of  Britain would be subject to checks, to bring Northern Ireland into compliance with Single Market regulations.”

Essentially, Johnson’s alternative arrangement to the backstop – as outlined in this letter –entails taking Northern Ireland completely out of the Customs Union, along with the rest of the UK, but, in a major compromise, leaving Northern Ireland in the Single Market.  The proposals envisage “an all-island regulatory zone on the island of Ireland, covering all goods, including agri-food.”

On the Customs Union question: Johnson deals with the problem of customs checks on goods passing between Ireland and Northern Ireland by stating that most of these checks would be carried out by unspecified technological, electronic means; they should “take place on a decentralised basis, with paperwork conducted electronically as goods move between the two countries”.  He admits that a “very small number of physical checks” would be still needed, but says that these would be conducted not at or near the border but “at traders’ premises or other points on the supply chain”. [1]

On the Single Market question: leaving Northern Ireland in the Single Market of course separates Northern Ireland from the rest of the UK.  As is pointed out in an explanatory note accompanying Johnson’s letter, this arrangement “would see regulatory checks applying between Great Britain and Northern Ireland”.[2]  So the proposed new Protocol would appear to be anathema to the DUP, which refuses to accept any separation between Northern Ireland and the rest of the UK.  But in the letter, Johnson’s plan placates the DUP by stipulating that the consent of the Northern Ireland devolved Assembly to the arrangement would have to be given six months before the new plan comes into effect and after that every four years.  And the initial reaction of the DUP was – rather surprisingly — to back the proposals.[3]

An additional complication, however, (as though the situation were not complex enough already) is that the Northern Ireland Assembly has been suspended for two years as a result of a bitter row between the Nationalist/Republican Sinn Fein and the Unionist/Loyalist DUP.

According to the terms of the Withdrawal Agreement negotiated with the EU by the Maybot, if the UK manages to leave the EU with a deal on October 31, there will be a transition period till the end of 2020, during which everything stays the same; the transition period could be extended to the end of 2021 if necessary.  So it is likely that Johnson’s alternative arrangements would come into effect at the end of 2021.  However, the proposals contain no guarantee that the new technological processes could be up and running by then. The EU also has many problems with the possibility that the Northern Ireland Assembly – if it ever resumes — could vote against the new plan.  The new proposals stipulate that, in order to protect the Good Friday Agreement, both sides would have to commit “never to conduct checks on the border”.  This would mean that, if at any point the Northern Irish Assembly (assuming it is ever in session again) votes against the arrangements, the EU would be unable to protect its Single Market on one of the EU’s furthest frontiers, the Irish border.

So until recently, the EU response has been negative.  Indeed, so problematic are the new proposals that the SNP leader, Nicola Sturgeon, described them as “designed to fail”.[4]  The idea of technological solutions to the backstop has been rejected again and again in the past by EU leaders as unworkable.   It was at first generally assumed that Johnson had put forward these proposals in the full knowledge that the EU would reject them, so that he could find some way of taking the UK out of the EU without a deal and then put the blame on the intransigence of the EU and the “sabotage” by Parliament of the negotiations.

But on Thursday (October 10), there was a sudden, seemingly miraculous – though still very precarious – change.  Johnson held a meeting, lasting over two hours, in a mock-Tudor manor house in the Wirral, in north-west England, with the Irish Prime Minister, Leo Varadkar.  They emerged from the meeting – which had included a long one-to-one walk together in the grounds – saying they could see a “pathway” to a deal.[5]  And this weekend (October 12-13), UK and EU negotiators entered what is called a “tunnel”: a period of secret, intensive, deeply serious negotiations that could lead to a deal.  If a deal were not considered possible, there would be no “tunnel”.

It seems that the breakthrough came when Johnson made a major concession over the Customs Union.  Bu no-one is clear as to what this concession has been.  Much has been made of the fact that Johnson did not actually deny the possibility that Northern Ireland might end up staying in some form of EU customs union, when he was asked about this prospect by reporters.  He replied:

“I think it would be wrong of me to give a running commentary on the negotiations.  With the greatest respect, I think, look at everything I’ve said previously.  I think you can draw your own conclusions from that.  But let our negotiators get on.  I can certainly tell you that under no circumstances will we see anything that damages the ability of the whole of the UK to take full advantage of Brexit, and I think that’s what people can expect, and that’s what I think we can achieve.”[6]

Robert Peston of ITV, one of the most astute Brexit commentators, suggested, in a Twitter thread on Friday (October 11) that this could mean that legally Northern Ireland would be outside the EU’s customs territory, but in practice there would be customs checks between Northern Ireland and the rest of the UK, so that in effect Northern Ireland would stay within the EU’s customs orbit:

“The PM has just said that, under the Brexit deal being negotiated, the ‘whole of the UK’ – – ie including Northern Ireland – would be able ‘to take full advantage of Brexit’.  Which means that NI would remain in the UK’s customs territory AND not in the EU’s customs union.  But… [new tweet]absolutely no-one in Dublin, Brussels or London is denying that there would be a de facto customs border between GB and the whole island of Ireland in the Irish Sea.  So Northern Ireland would be inside the EU’s customs union as a matter of practice but not of law.  Just….”

And, not surprisingly, Peston’s last tweet in this thread was: “thinking about the practical and philosophical issues this would raise is giving me a headache.  So I am going to stop now”. [7]

If Johnson does manage to achieve a deal by next Saturday (October 19) – which still seems unlikely but is now faintly possible – is there any chance that he can get it passed by Parliament?  The deal is likely to be a very “hard” one – much “harder” than the Maybot’s Withdrawal Agreement.  Representatives of five key British industries — aerospace, automotive, chemicals, food and drink and pharmaceutical — have written to the government expressing their fears about the possible new Johnson deal.  According to the BBC, which has seen the letter:

“The letter outlines their growing concern that Boris Johnson’s Brexit negotiators have dropped existing commitments to maintain regulatory alignment in relevant sectors.  The manufacturers’ key concern is that they may no longer participate in specific EU regulatory institutions after any Brexit deal.  The group is asking for a ‘reassurance’ that industry interests are still being prioritised by EU negotiators and the letter warns of the ‘damage which would be done by the current approach on regulatory divergence’”.[8]

The Labour leadership would definitely whip its MPs to vote against a “hard” Brexit deal; but Johnson would hope to win over a sizeable number of Labour rebels from Leave-supporting areas. It is likely that the DUP, despite its initial support, would vote against, on account of Johnson’s metaphysical customs concession.[9]  Robert Peston, commenting on the DUP’s objections in this regard, calls the new proposals “Schrodinger’s backstop”[10] (after Schrodinger’s Cat, which is alive and dead at the same time[11]). But it also seems that right-wing Brexiteers could vote for the deal[12]; and Johnson could even gain the votes of some of the 21 Tory rebels whom he sacked over their support for the anti-No-Deal Act.  So there is again a faint possibility that, if a deal really is achieved by next Saturday, it could pass in the House of Commons.

The latest news today on the talks (Sunday October 13) is that Johnson has briefed the Cabinet that he can “see a way forward” but “significant work remains to be done.”  In a statement, the European Commission said “a lot of work remains to be done” but added that “intense technical talks” will continue tomorrow (Monday October 14).  [13]

All the metaphysical, mystical and quantum physics problems created by Johnson’s Schrodinger’s Backstop would be avoided by Corbyn’s plan for a permanent UK-wide customs union with the EU, together with alignment with the Single Market.[14]

Parliament was prorogued for a few days on Tuesday (October 8)[15] (legally this time), in preparation for the State Opening of Parliament and Queen’s Speech that are taking place tomorrow (Monday October 14).   The EU Summit on Brexit is taking place on Thursday (October 17) and Friday (October 18). And on Saturday (October 19) the House of Commons is sitting on a Saturday for the first time since the Falklands War in 1982.  Saturday October 19 is the day on which Johnson will either bring a deal to the Commons for debate and vote or – if he doesn’t get a deal by then –be obliged by law to send a letter to the EU asking for an extension. The next Brexit Update will discuss the outcome of the coming crunch week for Brexit.