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Explainer: Where has the Northern Ireland backstop gone?

After almost two years of back-and-forth, a new Brexit withdrawal deal was agreed today.

brexit Boris Johnson, Taoiseach Leo Varadkar Chancellor of Germany Angela Merkel at the European Council summit Source: PA Wire/PA Images

IT’S FINALLY HAPPENED. 

After almost two years of political posturing, finger-pointing and passive-aggressive statements, the UK and European Union finally agreed a new Brexit deal this morning.

The agreement comes after days of back-and-forth negotiations between the two sides, both of whom finally seem happy with what the other has put on the table.

One aspect of the new deal is conspicuous by its absence: the backstop on Northern Ireland.

British MPs voted three times against the previous deal, agreed in December 2017, largely over objections to the backstop.

However, British Prime Minister Boris Johnson hopes that his new plan for the region will satisfy parliamentarians when they vote on it again this weekend.

So what’s changed in relation to the North?

Bye bye backstop

Key to today’s Brexit deal is the apparent removal of the controversial backstop from the UK’s Withdrawal Agreement.

Under the backstop, Northern Ireland would have stayed aligned to the regulations of the EU’s single market and customs union if, after Brexit, no solution to avoid a hard border was forthcoming in negotiations between the UK and the EU.

Essentially, the backstop was an insurance policy which was required because Ireland was worried about a return to a hard border.

Ireland fretted over the political implications this would have, particular because of its relationship with the six counties and the possibility of a return to Troubles-era violence.

Avoiding a hard border required Northern Ireland to have ‘regulatory alignment’ with the EU’s custom rules and regulations for products, food, animals, people and vehicles.

Without this alignment, checks and tariffs would have applied on goods, products and people travelling across the border – the EU’s only external land border with the UK.

brexit Taoiseach Leo Varadkar at the European Council summit at EU headquarters in Brussels today Source: Stefan Rousseau/PA Images

But the idea of regulatory alignment spooked the DUP, who support the Conservative Party under a confidence-and-supply arrangement which has allowed the Tories to be in Government in the UK since a general election in 2017.

The party viewed the backstop as an attempt to leave Northern Ireland stranded from the rest of the UK, potentially leading to calls for a united Ireland.

The British government’s solution to this was to introduce a UK-wide version of the backstop instead – but that became hugely controversial because hardline Brexiteers saw it as an attempt by the EU to trap them in the union indefinitely.

As time went on, all sides refused to budge and the UK looked set to crash out of the EU without a deal – which ironically meant that a hard border would return.

That was, until today’s announcement…

belgium-brussels-eu-brexit-press-conference Boris Johnson with President of the European Commission Jean-Claude Juncker at a press conference today Source: Xinhua News Agency/PA Images

Back(stop) to the future

The new deal, which will be voted on at a special sitting of the House of Commons on Saturday, has introduced two new arrangements affecting the North: consent and customs.

Under these terms, the backstop has now been replaced with a new protocol, whereby the North would remain aligned with the EU’s single market, but would leave the customs union along with the UK, after Brexit.

Because the North would remain in the single market, a customs and regulatory border would therefore come into effect on the Irish Sea – not unlike the original backstop.

UK authorities would then apply British tariffs to products which enter Northern Ireland, as long as they’re not destined for onward transportation across the border into Ireland.

If goods were to enter the single market by travelling across the border, EU tariffs would then be applied. 

However, it’s been suggested that if goods were to stay in the North or re-entered the rest of the UK, businesses could claim back these duties in the form of a rebate.

Meanwhile, EU rules on VAT and excise duties would also apply in the North under the protocol, but the UK would be responsible for their collection and keep the revenues.

Stormont consent

The other significant aspect of the new deal refers to the role of Stormont in deciding Northern Ireland’s regulations, which has been one of the sticking points for the DUP.  

More details are expected on the exact consent arrangements from the UK side, but it’s expected that the new agreement would be reviewed by Stormont every four years, beginning four years after the end of the transition period.

Then, the Northern Ireland Assembly will vote to decide whether to continue or not with the customs and regulatory arrangements. It’s been suggested that the winner of this vote will be decided by a simple majority.

brexit-britain-northern-ireland The Stormont Assembly will have a vote over the new arrangements every four years Source: AP/PA Images

Alternatively, cross-community consent for the arrangements – that is, if the vote is passed by most nationalists and most unionists – means they would remain in place for eight years.

This system aims to prevent the DUP from using the ‘petition of concern’ mechanism to veto measures designed to avoid a hard border in Ireland. 

And if the Assembly does reject the arrangement, there will be a two-year cooling off period, during which the UK and the EU would work on a new approach to customs and regulations.

Moreover, a vote cannot happen if the Assembly is not operating – as is currently the case.

The EU’s chief negotiator Michel Barnier said that members of the Assembly will “bear the responsibility of maintaining the system or breaking it off”.

“We now have to place trust in the system and those who will be managing it,” he said.

‘There will be no prolongation’

Speaking after the deal was announced, Taoiseach Leo Varadkar praised the agreement as a “unique solution” which recognises the history and geography of Northern Ireland and allows the UK to leave the EU in an orderly way.

He tweeted:

It’s good for Ireland and NI. No hard border. All-island and East-West economy can continue [to] thrive.

European Commission chief Jean-Claude Juncker welcomed the deal but warned that the Brexit deadline would not be delayed beyond 31 October. 

“It’s a fair and balanced agreement for the EU and the UK and it is testament to our commitment to find solutions,” he said.

“There will be no prolongation. There is not an argument for further delay – it has to be done now.”

belgium-brussels-eu-brexit-press-conference The EU's chief Brexit negotiator Michel Barnier this afternoon Source: Xinhua News Agency/PA Images

UK Prime Minister Boris Johnson claimed the deal allowed the UK to “take back control” of its own economic issues.

“I hope very much now that my fellow MPs in Westminster do now come together to get Brexit done to get this excellent deal over the line,” he said alongside Juncker this afternoon.

However, the DUP accused Johnson of losing his nerve and striking a bad Brexit deal in a desperate bid to avoid an extension of the deadline in two weeks’ time.

A statement by the party this afternoon said:

We will continue to work with the government to try and get a sensible deal that works for Northern Ireland and protects the economic and constitutional integrity of the United Kingdom. 

The party added that it would be “unable to support” the proposals in Saturday’s parliamentary vote in the House of Commons. 

With reporting from Press Association and - © AFP 2019.

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