While the government’s proposals for a revised Withdrawal Agreement focused around an alternative to the backstop may eventually prove to be academic, detailed scrutiny of the proposals is still required, not least as they provide a window into evolving attitudes to and understanding of the Good Friday Agreement.
There is growing evidence in the UK’s approach of a fundamental and narrow misreading of the nature and scope of the Good Friday Agreement.
The agreement covers not only the principle of consent, but encompasses a careful balance of relationships including internal power-sharing, north-south co-operation and the east-west relationship.
While the courts may have ruled that Brexit does not conflict with the institutions of the agreement and their operation, this only treats the agreement in a narrow legalistic sense.
It fails to take into account the wider context of the agreement and the implicit social contract underpinning it.
A large section of Irish nationalist opinion bought into the concept of a shared Northern Ireland, and accepted that the region would remain part of the UK until and unless a majority decided otherwise.
However, this was balanced by the facilitation of all-island interdependence through north-south institutional co-operation, and an open border enabled the joint UK and Irish membership of the EU and the single market.
Any form of Brexit will entail some form of friction, boundaries or borders which, in addition to creating additional bureaucracy for businesses or undermining business models, will create a narrative of winners and losers with associated emotional and psychological implications.
Despite the good progress under the peace process over the past 25 years, Northern Ireland still remains a constitutionally contested space and a divided society.
A faultline runs through the region and it should not be surprising that the question of Northern Ireland has so far frustrated a smooth Brexit.
The UK is supposed to be a co-guarantor of the agreement with the Irish government. However, Ireland and the EU have more reliably understood and defended its scope.
Under Theresa May the government did at least adhere to this understanding, albeit with some reluctance – as reflected in the language of the Joint Report of December 2017, and later the Withdrawal Agreement.
The current UK government, following on from some think-tanks and groups such as the Alternative Arrangements Commission, is placing an almost singular focus on the principle of consent.
This change of approach is encapsulated in Boris Johnson’s 19 August letter to Donald Tusk.
One of the key purposes of the backstop is to protect the Good Friday Agreement and at least guarantee the open border.
However, opponents of the backstop have been increasingly pushing a counter-narrative that the backstop is actually a threat to the agreement.
The current government’s proposals contain three challenges to the Good Friday Agreement.
The first lies in terms of process: under the agreement, the UK is required to act impartially between the Northern Ireland parties.
But the confidence and supply arrangement between the Conservatives and DUP complicates matters since the proposals have been developed in consultation with the latter – meaning that one of the five main parties in Northern Ireland has privileged access to policy making discussions.
The second relates to the actual proposals about a customs frontier across the island of Ireland.
There has been much talk of alternative arrangements replacing the backstop, but there is a substantive difference to point out here: the backstop is about ensuring that there is sufficient regulatory alignment to avoid a border, while alternative arrangements are about creating an interface (a border in all but name) and seeing how it could be managed.
Indeed, the backstop is about protecting the Good Friday Agreement in all it parts, preserving north-south co-operation, respecting existing rights, and maintaining the all-island economy.
The third concerns the tensions and complexities in the proposed regulatory regime for Northern Ireland.
It is debatable whether the decision to implement the system, and then to renew it every four years – as the new proposals state – should be in the hands of a regional assembly, given that the responsibility for maintaining the overall Withdrawal Agreement will lie with the UK as the treaty partner to the EU.
The Northern Ireland Assembly has itself been moribund for almost 1,000 days, with no immediate sign of a breakthrough in talks to achieve its reform and restoration.
If decision-making was given to the assembly, it would add a further source of tension and division on an already difficult and fragile situation, with a recurring choice for Northern Ireland to align with GB or EU regulations.
How this would play out in practice would be determined by the rules of the assembly, and especially the petition of concern, in which 30 out of 90 members can require that a particular vote is held on a cross-community basis, entailing in effect a simple majority but also a sufficient number of MLAs designated as ‘unionist’ and ‘nationalist’.
Unionists, who have wrongly perceived any further regulatory differentials between Northern Ireland and Great Britain as a constitutional issue, could block any move to the EU regulatory standards necessary to avoid border checks in Ireland.
Furthermore, it may only be possible for the assembly to consider such a resolution unless it has first been agreed by the power-sharing Executive, in which the DUP also has a de facto veto.
Debates around consent from Northern Ireland are inherently subjective and dependent on what is the status quo reference point.
The nature of the question to be put is fundamental, and the default position, as proposed by Johnson, is UK-wide regulation.
Therefore, the change that would then require cross-community consent would be for the EU regulatory framework.
Those arguing for the need for cross-community consent for the introduction of the backstop or similar arrangements conveniently ignore that there was no cross-community consent for Brexit itself, which was the original point of disruption.
There may be scope for the assembly to have a consultative role or to exercise some functions in terms of the details regarding how ongoing EU regulation would be implemented.
However, there are huge dangers in placing the existential questions regarding special arrangements for Northern Ireland and indeed the future of the agreement in hands of a divisive and loaded vote in the assembly.
Any such vote would constitute to a decision to respect or breach the terms of the agreement itself.