With Boris Johnson boxed into a corner by Parliament there is now growing talk that some form of ‘Northern Ireland-only’ or just plain ‘ Northern Irish’ backstop might offer him a way to deliver Brexit by Oct 31.
The Government denies this is Mr Johnson's intention – and the Prime Minister himself said in Dublin this week he wants the UK to leave the EU ‘whole and entire’ – but talk of accepting an 'all-Ireland' regime for plant and animal regulations has fuelled speculation this is where the Prime Minister is heading .
The question: could a Northern Irish backstop break the Brexit deadlock?
The ‘Northern Ireland-only’ backstop is not new. It was first floated by the European Commission in December 2017 as a way to keep a fully-open border in Ireland and preserve what is known as the ‘all-Ireland economy’, which the Irish government says is the bedrock of peace.
In essence, it would see Northern Ireland alone following all the rules of the EU – on customs, regulations, VAT and all the other multifarious areas of policy – that are required to deliver an invisible border in Ireland.
This was met with implacable objections both from the Democratic Unionist Party (DUP) and Theresa May's government, which warned that “no British prime minister” could accept a policy that put a trade border in the Irish Sea, dividing the UK's own internal market.
Ultimately, Mrs May decided not to accept that border and instead leave the entire UK in a temporary customs union with the EU while accepting a broad raft of single market regulations for goods and agriculture in order to deliver an invisible border in Ireland.
This presented the basis of a solution to the problem, subject to future trade negotiations with the EU, but it simultaneously alienated the Brexiteer wing of Mrs May's party who rejected the deal because it left the whole UK far too closely attached to the EU.
The question now, with Mr Johnson having entered Downing Street on the back of a promise to deliver a ‘clean break’ Brexit, is whether reverting to a Northern Ireland-only backstop can – politically and technically – solve the Brexit conundrum.
Can a Northern Ireland-only backstop deliver a fully-open border in Ireland?
The first question is whether a Northern Ireland-only backstop is technically possible to deliver at the negotiating table in Brussels. There is an easy and a hard answer to this question.
The easy answer is 'yes'. The EU offered the UK just such a deal in December 2017 and – until is was rejected by Mrs May in favour of an all-UK customs arrangements – this was the EU's preferred option.
A text of that 'NI-only deal' remains in Mr Barnier's bottom drawer and the EU has been clear that it would be prepared to open the Withdrawal Agreement in order to insert that deal back into the text. Mr Johnson could claim this as a political victory.
It might, while it was about it, also insert some more provisions (for example on the governance of the deal and the role of Northern Irish political parties to consent to future changes) that could sweeten it a little for the DUP. But still, it would fundamentally be the 'full monty' backstop.
Then there is what Mr Johnson appears to be suggesting, which is a kind of halfway house backstop which slices the existing deal into its component parts and tries to build a new deal with a mixture of alignment and technology.
But this is where senior EU officials and diplomats close to the negotiation in Brussels warn the idea being floated by Downing Street runs aground.
Why the EU says a halfway house won't work
Mr Johnson starts by suggesting that Northern Ireland should follow EU rules for animal and plant products (so-called SPS rules) in order to remove the need for checks at the border on agricultural goods.
EU diplomats recognise this as a "step in the right direction", but only a step, since the level of alignment needed in Northern Ireland to deliver an open border is far beyond what Mr Johnson is contemplating.
The offer to align on agri-food rules rules only addresses about 30 per cent of the issues arising at a border – it says nothing, for example, about VAT, customs, governance, industrial regulations and the so-called 'level playing field'.
So put simply, if a container of lamb chops heads for the border, it might have a clean bill of health, but who is going to collect whatever tariff is due on those chops?
Technology can help expedite customs checks, but in no border in the world does technology magic away the need for checks at or very close to the border itself. In short, an NI-only backstop will require Northern Ireland to be in the EU customs regime.
Then other questions arise. Will those chops, even if they are safe, have been raised with social, environmental and labour standards equivalent to the EU, or will Northern Irish farmers have been free to undercut EU competition? This is the so-called level playing field.
Given that Northern Ireland is so small, EU sources say some of these strictures could be relaxed, but only at the marginal. Sources familiar with the talks say the vast bulk of the backstop with its massive annexes referring to swathes of EU law must stand.
Then what about veterinary standards? And the levying of VAT? And moving away from lamb chops, if the UK is outside the EU customs union will NI products count as EU products in so-called 'rules of origin' calculations?
The wider point is that the Irish Protocol is a broad document that covers more than 150 separate areas of law and regulation that are necessary to deliver a fully open border in Ireland.
Mr Johnson's hopes that these can be replicated by so-called 'alternative arrangements' are, say EU sources, forlorn. When it comes down to the details, the two sides are talking at cross-purposes.
"Just look at the annexes to the backstop, they list hundreds of specific EU rules and regulations. If the UK wants to try and replicate these in alternative texts that would take hundreds and hundreds of pages," said a source with knowledge of the talks.
Thus far Mr Frost has offered no detail about how this will be done, except to request that the talks be split into four areas – customs, SPS regulations, industrial goods and governance – as precursor, apparently, to building a new backstop from the ground up.
EU sources are clear that even if this were technically possible, there is nothing like sufficient time to do this before Oct 31 – and given the state of UK politics, there is no mood to take at face value any British reassurances that they will look to fix these issues after Brexit.
In his letter of Aug 19 to Donald Tusk, Mr Johnson promised to look at "what commitments might help" to deliver such a border – but it is very clear that the EU will not settle for this, but will demand an 'all-weather' Irish backstop.
This backstop must create a 'fully open' border that maintains the "all-Ireland" economy intact in order to protect the peace process.
Mr Johnson now has a month to make his choices; to explore possibilities but the hard truth is that if the plan is an NI-only backstop (and there is a political logic to this) then it will look something very like the version rejected by Mrs May last year.
The politics of a Northern Ireland-only deal
Then comes the politics. The DUP is very clear that it will not support a NI-only deal, and Mr Johnson has been careful to say that any move to special treatment for Northern Ireland must be done with the consent of the parties. This effectively hands a veto to the DUP.
But there are lingering questions whether, when it comes to it, Mr Johnson might – not to put too fine a point on it – ditch the DUP. The argument runs that since his majority in Westminster has collapsed, their 10 'confidence and supply' votes no longer matter.
Even if Mr Johnson was not prepared to do this, there is some thought that the DUP, for all their hardline messaging, understands that a 'no deal' would be catastrophic for their long-term political fortunes since it could trigger demands for a united Ireland.
Might the DUP, therefore, ultimately be more flexible about accommodating checks on the Irish Sea – the kind of 'de-dramatised' border proposed by Michel Barnier in early 2018 – as the threat of a 'no deal' looms? Only at the margin, it seems.
But even Mr Johnson did ram through a full NI-only backstop, he would have to consider the impact on the Union, since his version of Brexit envisages the UK mainland diverging radically from the EU.
That creates a much starker potential 'gap' between a Northern Ireland – effectively left in the EU customs regime and single market for goods – and a 'buccaneering' Great Britain which accepts frictions with Europe to secure global trade deals.
This in turn risks reviving the question of Scottish independence. When the original 'NI-only' backstop was first mooted in back in December 2017, the Scottish National Party leader Nicola Sturgeon was instantly up in arms, demanding a similarly 'soft' Brexit for her country.
"If one part of UK can retain regulatory alignment with EU and effectively stay in the single market (which is the right solution for Northern Ireland) there is surely no good practical reason why others can't," she wrote on Twitter.
If that was true then, it could be doubly so if Mr Johnson used an NI-only backstop deal to land a Brexit that put up significant barriers between the UK and the EU, including tariffs, customs checks and regulatory divergence to accept, say, US agricultural practices.
The danger to Mr Johnson is that if Northern Ireland gets a 'best of both worlds' Brexit, it may provide solid grounds for demands for a second Scottish independence referendum – and may even provide the ammunition for Nationalists to win it.
Before then, he must also convince Parliament to vote for such a deal and despite some pro-Brexit Labour MPs, it is not clear why Labour would agree to deliver Brexit for Mr Johnson while consigning the rest of the UK to the hardest of 'Canada Dry' Brexit outcomes.
This is doubly questionable when the Benn legislation gives the Opposition the legal tools to force Mr Johnson to ask for an extension, breaking his pledge to leave the EU by Oct 31.
But if Labour MPs would vote for such a deal, just to get Brexit over the line, that may be Mr Johnson's only way of keeping his pledge to deliver Brexit by October 31 and setting off on his global trade mission – even if that means leaving a chunk of the United Kingdom behind.
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