Since Theresa May’s Lancaster House speech, the position of the UK government has been that the UK should be outside the single market and the customs union after Brexit. At the same time, the UK government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border. As a result, the Brexit negotiations have been haunted by an almost unsolvable riddle, writes Nikos Skoutaris (UEA). How could the UK and the EU keep a land border between a Member State and a third country open without jeopardising the integrity of the single market, he asks?

The Backstops

That riddle has two possible solutions. Either the UK as a whole has to opt for a much closer relationship with the EU than the one described in its red lines or it has to accept that Northern Ireland will have a closer relationship with the European Union than the rest of the country. Indeed, the latter was the initial EU proposal included in the first draft Withdrawal Agreement. Of course, remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures is anathema to many, not least the DUP. This is why the UK insisted and the EU accepted to amend the backstop in the finalised version of the withdrawal treaty and follow the first option. Barring a deal on free trade that secures a friction-less border, the UK as a whole would remain in a “bare bones” customs union with the EU; while Northern Ireland would additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border. However, that compromise was defeated three times in Westminster.

Boris Johnson’s Alternative Proposal

29 days before the day that the UK is supposed to leave the EU, Theresa May’s successor, Boris Johnson, finally revealed his plan for an alternative to the backstop hoping that it can lift the deadlock and lead to the elusive orderly withdrawal from the EU. The proposal is based on the idea that Northern Ireland will be part of the EU single market for all goods. The logic behind it is quite similar to Theresa May’s stillborn ‘Chequers agreement’ over which the current Prime Minister resigned. Putting this irony aside for a moment, one has to admit that this is a welcome (albeit delayed) recognition of the fact that the Irish border conundrum cannot be resolved solely by technology, optimism and good will. Regulatory alignment is a necessary condition.

However, it is an insufficient condition for achieving a friction-less border unless customs checks are also avoided. Unfortunately, the UK government insists on the withdrawal of Northern Ireland from EU’s customs union. Such political choice means that some physical infrastructure and related checks will be introduced on the island of Ireland. This contradicts the letter and the spirit of the December 2017 Joint Report. More importantly, it raises serious questions on the effect of such checks on the all-Ireland economy, the security of the island and the fate of the fragile peace process in general.

In a letter to Donald Tusk, Boris Johnson had warned that his government ‘cannot continue to endorse the specific commitment […] to “full alignment” with wide areas of the […] customs union.’ The reason behind such cavalier approach seems to lie on a rather misconceived notion of the issue of constitutional integrity. In a recent interview the Prime Minister suggested that keeping Northern Ireland within the UK customs territory ‘protects the unity and the integrity of the United Kingdom.’ As I have explained elsewhere, there are numerous cases where parts of the same State belong to different customs territories (see eg Ceuta and Melilla in Spain). The sovereignty of the respective metropolitan State over these areas has never been challenged just because customs laws applied differently there. More interestingly, the UK has accepted the principle of differentiated customs arrangements in the case of the UK Sovereign Base Areas in Cyprus that will remain within the EU customs territory even after Brexit takes place.

The Principle of Consent

The alternative that Boris Johnson has suggested creates a de facto territorial border on the island of Ireland and establishes a regulatory border across the Irish Sea. Still, the DUP has endorsed this plan. This is rather surprising if one takes into account that its leader Arlene Foster had in the recent past declared that they ‘will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom.’ Equally, Lord Trimble -one of the architects of the Good Friday Agreement- has gone as far as suggesting that the alignment of Northern Ireland with the rules of the single market in the area of free movement of goods could equate to the region ending up ‘as part of an effective EU protectorate.’

One possible reason behind such damascene conversion might lie with the fact that this sophisticated arrangement will be dependent on the consent of Stormont. The Northern Ireland Assembly would have to first endorse it and then re-approve it every four years. In principle, the democratic input of Stormont should be welcome. However, the well documented problems in its functioning could be also strategically explored by the parties in the conflict in order the UK to be legally relieved from its commitments.

It would be highly ironic if the arrangement that was introduced to deal with the democratic deficit of the backstop collapsed because a minority of MLAs de facto vetoed it through the ‘petition of concern’ procedure. Perhaps a more sustainable ‘Stormont lock’ would entail treating the proposed differentiated arrangement as the default for Northern Ireland and allowing for its collapse only in case there is cross-community support at some moment in the future.

Be that as it may, it seems that if the EU decides to seriously engage with this proposal, the UK government and DUP will be faced with the same dilemma again. Should they accept more differentiation in the area of customs for Northern Ireland? Falsely insisting on the idea that such differentiation threatens the integrity of the UK might put the peace process at risk of deep fissures. Ironically, it is in such situation that the threat to the constitutional and territorial integrity of the ‘precious Union’ would become really tangible.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image: Eric Jones / “No Hard Border” poster at Killeen Bridge / CC BY-SA 2.0

Dr Nikos Skoutaris is an Associate Professor in EU law, UEA. His website focuses on Secessions, Constitutions and EU law. Follow him on twitter.