To the surprise of many, Northern Ireland – through the DUP – has been the silent majority shareholder in the Brexit negotiations to date. Their influence is remarkable because, in practice, they have no direct role in the negotiations. Sylvia de Mars (Newcastle Law School) describes the rise and fall of Northern Ireland’s importance in Brexit negotiations.

The Article 50 TEU process is conducted by the UK and the EU, which does not require any ratification by ‘regional’ levels of government the way that EU mixed agreements might. Insofar as the negotiators are guided by any other interests when considering their future trade relationship, the rules of the World Trade Organization (WTO) come to mind long before the desires of the DUP do.  All the same, though, Northern Ireland’s positions have shaped the running of Phase 1 – starting with the December 2017 Joint Report, and culminating in the Withdrawal Agreement – more than any other level of government has. But will this level of influence last?

Phase 1: Northern Ireland’s rise

Northern Ireland’s influence on the Brexit negotiations is very clear if we consider what we know of the negotiating priorities of the UK and the EU. The EU did not want to split up the single market – meaning the UK, whatever it asked for, was not going to get free movement of goods without accepting the other four freedoms. The UK’s Conservative government, meanwhile, wanted out of the single market, out of the customs union, and wanted no Court of Justice jurisdiction in the UK … at least in the long run.

Between these two parties, a compromise seems relatively clear: if the UK does not want to be in the single market, and the EU does not want to split the single market, the UK will leave the single market, and the customs union, and this by proxy means no future CJEU jurisdiction. Instead, trade will happen under a semi-standard free trade agreement that is compliant with WTO rules in the future relationship. Withdrawal should thus end the UK’s single market and customs union membership and bridge it into this next trade relationship, where the UK is not obliged to adopt any EU rules and trade happens with more friction.

But then came the island of Ireland, throwing a significant wrench into this seeming UK-EU middle ground of a loose, Canada-style trade arrangement. The Belfast/Good Friday Agreement commits the UK to as a whole adopt Northern Ireland’s concerns about doing nothing to undermine cross-border cooperation under Strand 2 in any way, and following effective diplomacy, the EU also adopted the Irish position of also not wanting to do anything that might destabilize the 1998 settlement.  As such, we ended up with the December 2017 Joint Report and its promise to avoid any physical infrastructure at the border – preferably through the ‘future relationship’, but if all else failed, through a backstop that effectively wrapped Northern Ireland up into the EU for trade purposes.

Except this also was not what Northern Ireland wanted – or at the very least, not what the DUP wanted, and with the UK government dependent on DUP votes, their interests resulted in one final twist to the shape of the backstop. The final Withdrawal Agreement, following something hinted at in the Joint Report, contains unilateral guarantees by the UK that it will align Great Britain’s regulations to those in Northern Ireland if the backstop activates, and generally incorporates the entirety of the UK into a customs area with the UK. This keeps Northern Ireland a solid part of the UK market, and the EU clearly decided this was a worthwhile further compromise, even if it is blurring the edges of its red lines a little. As such, Phase 1 was undoubtedly shaped more by Northern Ireland than by other UK government priorities, other devolved actors or even other aspects of the international framework in which future EU/UK relations will take place.

Phase 2: Northern Ireland’s (likely) fall

What will happen to Northern Ireland’s voice once talks proceed beyond phase 1? Northern Ireland finds itself excluded from UK trade negotiations by law, regardless of whether its own executive is functioning. Nothing in the CRAG Act, governing how Parliament participates in treaty ratification, gives any representatives of Northern Ireland (whether Westminster or Stormont-based) a specific role. Northern Ireland representatives are likely to be present at meetings of the Withdrawal Agreement’s Special Committee on the Backstop Protocol, but are not ultimate vote-holders on its extension or termination. They also cannot veto the future relationship as the CRAG Act currently stands. Attempts to create what has been called a ‘Stormont Lock’, whereby primary UK legislation guarantees that GB and NI will remain regulatorily aligned, are sensitive to the composition of Parliament: a future parliament could always ‘unlock’ such legislation. The extent of Northern Ireland influence or power over the future relationship agreement is thus dependent on the extent to which Westminster is dependent on Northern Irish MPs to get the ‘future relationship’ through. Assuming a general election before that future relationship agreement is concluded, it is unlikely that they will hold this 10 seat ‘silent majority shareholder’ position once more.

At that point, are we looking at a hard border on the island of Ireland after all? No: absolutely not. The Irish position won’t change and will only strengthen: Ireland can veto any future trading relationship agreed with the UK, and this will obviously inform all levels of negotiating. It does not want a ‘hard’ border – and so it will block any proposals that result in one.

But with the DUP votes out of the equation, a future UK Parliament may wish to pursue a relationship with the EU that does indeed treat Northern Ireland as a special bespoke customs territory, largely trade-governed by EU rules rather than UK ones. That form of ‘backstop’ may be appealing to anyone in Parliament that wishes for the UK, representing only Great Britain here, to pursue its own trading relationships with non-EU countries without being effectively tied to EU regulations and customs provisions. And in the possibility of the ‘backstop’ being reshaped along those lines, we see the hard limits of the extent to which sub-governmental or ‘local’ concerns can shape supranational policy: when an entity like Northern Ireland does not have express decision-making power as either a direct participant or a ‘kingmaker’ of sorts, it will be at risk of being ignored. 

This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image copyright: Kenneth Allen and licensed for reuse under this Creative Commons Licence.

Sylvia de Mars is a Senior Lecturer in Law at Newcastle Law School. Her most recent work, as part of a team of four legal academics at Newcastle, Durham and Birmingham, has been on the trade dimension of Brexit, and particularly how it impacts Northern Ireland. For more information, please visit http://www.niconstitution.org or follow the project team on Twitter @niconstitution.