Yesterday’s announcement that the UK government had concluded a revised Brexit agreement with the European Union could see the UK finally leave the bloc if MPs approve the proposal tomorrow.
The EU’s chief negotiator, Michel Barnier, said the new solution rests on four main elements. The first is that Northern Ireland will remain aligned to a limited set of EU rules, meaning goods coming from Britain will be checked on entry to the island, rather than on the border between Northern Ireland and Ireland.
Secondly, Northern Ireland will remain in the UK's customs territory for all future trade deals, and will be the external border to the EU’s single market.
The final elements are improved VAT rules, and a Stormont lock that allows the Northern Ireland Assembly to vote on whether or not to keep the arrangements in place.
"Throughout these negotiations, the EU and UK were fully committed to protect peace and stability on the island of Ireland," Barnier said.
"Discussions over the past days have at times been difficult, but have delivered and we have delivered together."
Two Cs for victory?
Essentially, the revised agreement boils down to the two Cs: customs and consent, where tweaks have been made to remove the backstop.
The original backstop proposal for the whole of the UK to remain in a customs union with the EU has been replaced with a dual tariff regime. The backstop doomed May’s deal as Eurosceptics feared the UK would never be able to move to alternative arrangements that would allow it to strike its own trade deals.
Both the EU and UK had said they did not want the backstop to be implemented, but Jonathan Powell, No.10 chief of staff underTony Blair and a key figure in the Northern Ireland peace process, said Johnson had now “transformed it from a fallback into the definitive future arrangement for NI with the province remaining in the single market and customs union”.
Raoul Ruparel, a former special adviser to May and to Brexit ministers who now co-directs the Open Europe think tank, agreed.
“NI protocol is no longer a backstop but a front stop,” he said on Twitter. “It sets out to create a permanent relationship for NI regardless of the future relationship between the UK/EU. This likely serves to exacerbate the DUP's concerns”. The Democratic Unionists have said they will not vote for the deal tomorrow.
An Institute for Government analysis of the deal highlighted that EU customs rules will apply for Northern Ireland–Republic of Ireland trade, while goods moving directly from Great Britain to Northern Ireland won’t be subject to a tariff unless the good is “at risk” of being moved into the EU afterwards. Likewise, goods from third countries entering Northern Ireland will be subject to the UK tariff, unless they are likely to be moved to the EU.
Customs checks and controls will therefore apply for goods moving from Britain to Northern Ireland, but no checks or controls will be required between Northern Ireland and the Republic.
This dual-tariff regime has replaced the customs union in the original backstop. “This would introduce customs checks between GB and NI, whereas the previous deal included a customs union so there was no need for tariffs or rules of origin checks,” the IfG said.
The European Commission said in a statement that the deal “avoids a hard border on the island of Ireland, protects the all-island economy and the Good Friday Agreement in all its dimensions and safeguards the integrity of the single market.
“This solution responds to the unique circumstances on the island of Ireland with the aim of protecting peace and stability.”
It added: “In terms of customs, the EU-UK Single Customs Territory, as agreed in November 2018, has been removed from the Protocol on Ireland/Northern Ireland, at the request of the current UK government.
“EU and UK negotiators have now found a new way to achieve the goal of avoiding a customs border on the island of Ireland, while at the same time ensuring Northern Ireland remains part of the UK's customs territory.
“Finally, the EU and the UK have agreed to create a new mechanism on ‘consent', which will give the members of the Northern Ireland Assembly a decisive voice on the long-term application of relevant EU law in Northern Ireland.”
The consent plan means that four years the transition period ends in December 2020, the UK must give Northern Ireland the opportunity to approve the trade elements of the protocol. The Northern Ireland Assembly will also periodically vote on whether to consent to the continued operation of the protocol for as long as it remains in force.
The frequency of the vote will depend on how the decision is made. If a simple majority of assembly members vote in favour, they will have the opportunity to vote again four years later. But if the measure is approved on a cross-community basis – by either a majority of members and a majority of both unionists and nationalists, or 60% of members and 40% of unionists and nationalists – then the assembly will not vote again for eight years.
‘Broadly sensible, if complex’
This new provision gives Northern Ireland a potential exit from the customs agreement, something that was not possible from May’s backstop, the IfG said. “Theresa May proposed to give the Northern Ireland Assembly a vote on NI-GB divergence in areas covered by the Northern Ireland protocol in the previous version of the withdrawal agreement. But these arrangements were to be codified in UK law, rather than in the withdrawal agreement itself.”
The consent process “seems broadly sensible, if complex”, said Ruparel. “It ensures wide consent and avoids any one party having a veto. It is hard to see how else it could be structured without giving just that.”
However, the approvals mechanism means the NI protocol “is in some ways both more and less permanent than the previous one”, he said. “There is a potential route out. But the rolling consent process and front stop approach, suggest it is never designed to be temporary unlike previous backstop.
“I do not think it quite right to say this is exactly the same as the previous deal or the [European] Commission's original NI-only backstop. The consent process, keeping NI in UK's customs territory amd the rebate process are all meaningful changes to those previous proposals.”
The other major change is the removal from the legally-binding text of the deal of a commitment to keep the UK's social and environmental protection standards and regulations aligned with those of the EU. The so-called level playing field provisions for Britain have instead been added to the political declaration, meaning they will be decided in the free trade negotiations.
However, Northern Ireland’s closer alignment to EU rules will be enforced by the European Commission and the European Court of Justice, although UK bodies will often be tasked with enforcement duties on the ground, according to the IfG.
Ruparel concluded that the political declaration “now aims for a more standard free-trade agreement”.
“While the ambition on goods has been reduced, the ambition on services has not been increased. The level playing field commitments seem in line with approach in FTAs & signal EU acceptance this is for the next phase,” he said.
He added that whether the agreement is good, or better than May's deal, "depends on your point of view".
“It leaves the future more open and allows UK to be sure of an independent trade policy. But it makes significant changes to trade within our union, which may become permanent albeit with democratic oversight.”
It is MP's point of view that will decide if this deal shapes the UK’s future.