A territorial perspective on the UK proposals to replace the backstop

devolved territories

The UK government’s proposals to replace the protocol on Ireland/Northern Ireland (the ‘backstop’) have generated a lot of commentary about what they mean for the EU, the single market and the Irish border.

More neglected have been the implications for the constituent territories of the UK, yet the vision the Prime Minister set out would have a considerable impact on devolution and the politics of independence.

The proposals may be a starting point for negotiations, but they raise a number of concerns for Ireland and the EU that cast doubt about the prospect of reaching agreement.

These include establishing a customs border in Ireland without clear customs checks, its impact on the Good Friday Agreement, challenges for cross-border security, and cherry-picking on the single market, with regulatory alignment in goods only and no ‘level-playing field’ commitments for associated policy areas like the environment, social policy and employment rights.

Even if a deal could be reached with the EU, there is no certainty that it would secure parliamentary approval.

Unlike Westminster, the devolved institutions have no formal say over the Withdrawal Agreement or the future relationship.

The Supreme Court may have come to the defence of the sovereignty and authority of the Westminster Parliament to hold government to account in a range of Brexit-focused judgments, but such legal authority has not been extended to the devolved legislatures.

Yet, the devolved governments have a significant stake in Brexit outcomes and have used every opportunity to try to influence the UK government’s approach to negotiations with the EU.

At least at the start of her premiership, Theresa May had demonstrated a willingness to engage with the devolved governments, with new intergovernmental forums set up to ‘seek to agree a UK approach to, and objectives for, Article 50 negotiations’.

In the end, despite an intense period of intergovernmental negotiation through the Joint Ministerial Committee and other inter-ministerial forums, the devolved governments clearly had little impact on shaping the former prime minister’s red lines and were not even on the margins of the negotiations with the EU.

Relations between the UK and devolved governments, especially the Scottish government, were thus already under strain.

The new proposals, and the direction of travel they signal, seem certain to test relationships even more.

Whereas both the Scottish and Welsh governments have consistently championed remaining within or closely aligned to the EU’s single market, the Prime Minister’s letter to Jean-Claude Juncker reveals his vision of an altogether different path for the UK.

He dismissed the existing backstop as ‘a bridge to a proposed future relationship with the EU in which the UK would be closely integrated with EU customs arrangements and would align with EU law in many areas. That proposed future relationship is not the goal of the current UK government.’

This points towards a much looser relationship between the UK and the EU than was envisaged by Theresa May, with a different GB/UK regulatory regime.

But not all regulatory authority will rest with the UK government and Parliament after EU exit. The devolved institutions will have scope to make their own regulations in areas of devolved responsibility.

While the EU (Withdrawal) Act introduced some constraints on these powers, these would only be temporary and are much looser than was originally envisaged when the bill was introduced, not least in response to the collaborative efforts of the Scottish and Welsh governments to resist what they regarded as a raid on devolved competence.

Moreover, civil servants from each of the governments have been working together to determine the need, scope and implementation of any common UK regulatory frameworks they agree may be necessary once the UK leaves the EU.

The Prime Minister’s apparent intention to move away from EU regulations could make this process much more fraught.

In addition, the Scottish government’s legislative programme includes plans for a new ‘continuity bill’, designed to enable the Scottish Parliament to ‘keep pace’ – and thus remain aligned – with EU law in devolved areas.

This heightens the prospect of further regulatory divergence, and further political disagreement, between the Scottish and UK governments.

Boris Johnson’s proposals commit to enhancing legal authority for one of the devolved territories, by giving an opportunity to the Northern Ireland Executive and Assembly to give their consent to the border arrangements.

That the ‘regulatory zone must depend on the consent of those affected by it’ is described as ‘fundamental to democracy’. Without that consent, expressed at the end of transition, the protocol would not be implemented.

Maintaining the arrangements thereafter requires a renewal of consent every four years.

As well as creating prolonged uncertainty and overlooking that the effects may be felt beyond Northern Ireland, not least on the other side of the border, the consent proposal gives rise to further questions.

What happens if devolved government is not restored and there is no executive or assembly to give its consent? And even if there was, what happens if majority consent is secured without cross-community consent?

The focus on the importance of democratic consent for Northern Ireland will be viewed by many as a slap in the face to Scotland, where 62% voted Remain in 2016 and the Scottish Parliament’s withholding of consent for the EU (Withdrawal) Act was ignored by the UK Parliament.

The UK government’s willingness to accept distinctive arrangements for Northern Ireland also contrasts with its disregard of the Scottish government’s proposals for a differentiated solution for Scotland that could allow it to remain within the EU internal market.

As the SNP prepares for its annual conference in mid-October, these developments are likely to energise the growing calls for a new independence referendum in Scotland.

Yet, UK divergence from the principles and scope of EU laws and regulations poses considerable challenges to the case for independence.

It increases the risk that independence in the EU would require both a regulatory and customs border between an independent Scotland and the rest of the UK. That may be a difficult sell to the Scottish electorate.

By Professor Nicola McEwen, senior research fellow with the UK in a Changing Europe and co-director of the Centre on Constitutional Change.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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