October 18, 2019
BREXIT UPDATE 47: Johnson’s Sleight-of-Hand Deal
To give Boris Johnson credit, hardly anyone thought a deal could be concluded in five days and nights. But EU and UK negotiators were engaged in “intense technical talks”, seemingly non-stop, day and night, till a deal was finally agreed on Thursday morning.
As I wrote in Brexit Update 46, the “pathway” to this deal was revealed when Johnson – having proposed that Northern Ireland should stay in the Single Market – agreed, at his meeting with Leo Varadkar, the Irish Prime Minister, to make concessions also on the Customs Union. Clearly, the EU’s aim was to try to squeeze the UK into agreeing to a Northern Ireland-only backstop, according to which Northern Ireland would remain in both the Single Market and the Customs Union, with the border in the Irish Sea, between Northern Ireland and the rest of the UK. Ironically, this was the original proposal that the EU made to the Maybot right at the beginning of the Brexit negotiations; but she refused because such a plan was anathema to the DUP, which propped up her government.
As I wrote in Brexit Update 44, there had been speculation that, having lost his majority anyway and so no longer being dependent on the DUP, Johnson might go for a Northern Ireland only backstop. But he ruled this out. He hoped to win over the DUP to vote for any deal he negotiated; and more important, the DUP has been seen as a key to the votes of the right wing Tory Brexiteers, who are opposed to giving up any part of the UK to EU control. It has been generally assumed that they will only vote for a deal if the DUP supports it.
What has finally been agreed is in effect a Northern Ireland only backstop – but it is being described as a “Schrodinger’s Backstop” (see Brexit Update 46) because of its close resemblance to the quantum physics concept of “Schrodinger’s Cat” which is alive and dead at the same time. Northern Ireland is both inside the EU Customs Union and outside it at the same time. Legally, Northern Ireland is outside the EU Customs Union and within the UK’s Customs Union, but practically and operationally Northern Ireland is inside the EU’s customs orbit. This means that there are no customs checks on the border between Ireland and Northern Ireland. The Irish Sea becomes the EU/UK border, with customs and regulatory checks taking place at “points of entry” on the Irish Sea – ie major ports, such as Belfast, Larne, Liverpool and Holyhead, in Northern Ireland and Great Britain (ie England, Scotland and Wales). Goods passing from Great Britain to Northern Ireland will not require tariffs if their final destination is Northern Ireland, since they will be within the UK’s Customs Union. But if their final destination is Ireland and further beyond it into the EU, goods will require the payment of tariffs, which the UK will collect on behalf of the EU.
I wrote in Brexit Update 46 that — in an attempt to placate the DUP in relation to the issue of Northern Ireland remaining in the Single Market and thus being separated from the rest of the UK – Johnson had proposed that the Northern Ireland Assembly would vote on the new arrangements six months before they came into effect and every four years after that. According to the power-sharing agreement between the DUP and Sinn Fein, no decision can be reached without the consent of both political parties; so Johnson’s plan would effectively have given the DUP a veto over the new system. Johnson made concessions on this issue too; in the deal that has been reached, the Northern Ireland Assembly’s decision on the new arrangements will require only a simple majority. This means that Sinn Fein and the other Northern Irish parties will be likely to defeat the DUP, which has thus lost its veto.
In Brexit Update 1, I defined the backstop as follows:
“It is a provision that only comes into effect if Britain leaves the EU after the transition period without securing an all-encompassing deal (a permanent solution to the Irish border question is still to be negotiated) – hence the name ‘backstop’, which means something which can be relied upon as a safeguard in case of emergency.”
But in Johnson’s deal the backstop, which, in the Maybot’s deal, was only intended to be a fall-back (with a temporary Customs Union and a few regulatory checks to align NI with the Single Market) has in effect become the permanent solution. Jonathan Powell, who was Tony Blair’s chief negotiator on the Good Friday Agreement, tweeted:
“The funny side of the No 10 claim they have got rid of the backstop is that they have in fact transformed it from a fallback into the definitive future arrangement for NI with the province remaining in the single market and customs union.” 
So Johnson’s Deal – fully in accordance with his character — is a sleight-of-hand deal: it purports not to include a Northern Ireland only backstop, but in fact does; it claims to have abolished the backstop entirely but has in fact enshrined it as “the definitive future arrangement” for Northern Ireland.
The DUP have of course refused to support the new deal, which deprives them of a veto and creates a border in the Irish Sea. Johnson seems to have decided to sacrifice the support of the DUP in order to reach a deal before the October 17 summit. He is gambling that he can still win a majority in Parliament without the DUP; they only have ten votes and he clearly thinks he get enough support from Labour rebels to make up for this; also he is evidently calculating that he can win over the right wing Brexiteers despite the defection of the DUP.
Initially there were fears that Johnson might persuade EU leaders to refuse another extension; this would have meant the House of Commons would have been faced with the stark choice of his deal or No Deal; he would in effect have been holding a gun to the heads of MPs: vote for my deal because the only alternative is No Deal. Jean Claude Juncker, the President of the European Commission, at first stoked these fears by appearing to rule out any more extensions; but soon afterwards EU leaders made it clear that the door is still open to an extension should the deal fail in Parliament.  Johnson’s hopes in fact lie now with the opposite process; that right wing Tory Brexiteers and rebel Labour Leavers will vote for the deal because the only alternative would be another extension. He will also hope to win over some at least of the ex-Tory rebels whom he sacked after they voted for the anti-No-Deal Act.
Labour, the SNP, Plaid Cymru and the Liberal Democrats are all opposed to the deal. Corbyn has told Sky News:
“From what we’ve read of this deal, it doesn’t meet our demands or expectations, it creates a border down the Irish Sea, and it leads once again to a race to the bottom in rights and protections for British citizens and a danger of the sell-off of our national assets to American companies.”
The Withdrawal Agreement negotiated by the Maybot included clauses about a “level playing field” – ie the degree to which the UK would stick closely to EU regulations on issues such as workers’ rights, food safety and the environment. But in Johnson’s deal, these clauses have been removed from the binding Withdrawal Agreement and transferred (in a watered-down form) to the non-binding Political Declaration on a Future Relationship.
There has recently been a renewed attempt – now reversed — by Shadow Cabinet Remainers to force Labour in the direction of the position of “a second referendum before a General Election”, despite the decisions made by the Labour Party Conference; and there has been discussion by opposition MPs of the idea of supporting Johnson’s deal if an amendment is added to it that stipulates that it must be put to the public, together with a Remain option. But Corbyn is opposed to giving any support to the deal; and this particular amendment plan seems to have been abandoned. 
However, other amendments have been tabled, including a very complicated one put forward by the rebel ex-Tory MP Oliver Letwin (with considerable cross-party support, including that of Labour) that is attracting much media attention tonight. It seeks to pre-empt any chance that Johnson could still bring the UK out without a deal by postponing a Commons decision on the deal and triggering the anti-No-Deal Act, so that Johnson would be forced to ask Brussels for an extension. More on this complex amendment in the next Brexit Update.