Boris Johnson has made three suggestions concerning the Northern Ireland backstop in a letter to Donald Tusk issued overnight. They provide no basis for thinking there is any desire on his part to reach agreement on this issue. The first claim was:
First, it is anti-democratic and inconsistent with the sovereignty of the UK as a state.
His argument is:
The backstop locks the UK, potentially indefinitely, into an international treaty which will bind us into a customs union and which applies large areas of single market legislation in Northern Ireland. It places a substantial regulatory border, rooted in that treaty, between Northern Ireland and Great Britain. The treaty provides no sovereign means of exiting unilaterally and affords the people of Northern Ireland no influence over the legislation which applies to them. That is why the backstop is anti-democratic.
This is, of course, nonsense. Northern Ireland has, in effect, a written constitution that the people of Northern Ireland voted for. It is the Good Friday Agreement. And that is binding. It was democratically chosen. And no border is part of that Agreement. So this argument cannot apply to Northern Ireland.
Nor then can it apply to the rest of the UK either. That’s because we are a signatory to that agreement. And in any case, first of all Northern Ireland is a separate jurisdiction from the rest of the UK, with its own law, Parliament (albeit suspended) and very clearly different constitutional arrangements that have, in my lifetime, permitted the ending of free movement between Northern Ireland and Great Britain. To suggest a border in the Irish Sea is not democratic is then wrong, not least when it already exists on abortion rights and so many other issues.
Whilst to argue that we cannot be democratically bound by a commitment given is absurd. I suggest the UK tries to reclaim the USA if it thinks matters once decided can be reversed and then see what happens.
This argument is, then, wrong. So too us the second:
Second, it is inconsistent with the UK's desired final destination for a sustainable long-term relationship with the EU. When the UK leaves the EU and after any transition period, we will leave the single market and the customs union. Although we will remain committed to world-class environment, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.
The backstop is inconsistent with this ambition. By requiring continued membership of the customs union and applying many single market rules in Northern Ireland, it presents the whole of the UK with the choice of remaining in a customs union and aligned with those rules, or of seeing Northern Ireland gradually detached from the UK economy across a very broad ranges of areas. Both of those outcomes are unacceptable to the British Government.
Accordingly, as I said in Parliament on 25 July, we cannot continue to endorse the specific commitment, in paragraph 49 of the December 2017 Joint Report, to 'full alignment' with wide areas of the single market and the customs union. That cannot be the basis for the future relationship and it is not a basis for the sound governance of Northern Ireland.
The rest of the UK can make the changes Johnson desires. Northern Ireland cannot. And the rest of the UK has given up the right to demand that Northern Ireland does. The Good Friday Agreement meant that was the case. And there is a sea border that facilitates this. Again, the argument does not reflect the UK’s constitutional commitments. And remember the backstop only applies to the rest of the UK because the UK demanded that it did so: the EU did not want this.
So we come to the third argument:
Third, it has become increasingly clear that the backstop risks weakening the delicate balance embodied in the Belfast (Good Friday) Agreement. The historic compromise in Northern Ireland is based upon a carefully negotiated balance between both traditions in Northern Ireland, grounded in agreement, consent, and respect for minority rights. While I appreciate the laudable intentions with which the backstop was designed, by removing control of such large areas of the commercial and economic life of Northern Ireland to an external body over which the people of Northern Ireland have no democratic control, this balance risks being undermined.
The Belfast (Good Friday) Agreement neither depends upon nor requires a particular customs or regulatory regime. The broader commitments in the Agreement, including to parity of esteem, partnership, democracy and to peaceful means of resolving differences, can be be met if we explore solutions other than the backstop.
One wonders what Johnson knows of the Good Friday Agreement. Perhaps th3 most critical part of it was that, whilst it was agreed in Northern Ireland, of course, the factor which ensures consensus it would work were the international guarantees. The UK, Ireland and the USA guarantee this Agreement. They accepted obligations to support it. Two are doing so. One is not.
And if Johnson was so worried, he could ask that Northern Ireland keep a seat in the EU parliament and representation in Brussels. It would be an odd request, bit of all potential demands one that might be deliverable, maybe. That would, then, overcome the issue. But nothing Johnson says comes remotely close to that. This was not a letter written in good faith.