A reader in public law at Newcastle University, Colin Murray, has written an article (HERE) about the backstop and the Irish border. It's quite a dense read but as I understand it the UK government has got itself into a real fix by making the commitments it has. Firstly, as Mr Murray says, immediately after the referendum by guaranteeing to protect the 1998 Good Friday Agreement (GFA) in full.
And then in December, in the joint report, by the recognition that the Agreement [the GFA] ‘must be protected in all its parts, and that this extends to the practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement’ (paragraph 42 of the JR).
This he says gave the UK government almost no room for manoeuvre. The Chequers plan agreed in July this year was, in his words, an attempt to "brazen the issue out". A free trade area covering goods “would avoid the need for a hard border between Northern Ireland and Ireland, without harming the internal market of the UK – doing so in a way that fully respects the integrity of the EU’s Single Market, Customs Union, and its rules-based framework” (page 8 HERE).
But this is not the full alignment as required by the backstop, as the EU has since maintained. Murray claims that, "Chequers provides for a partial alignment, and border checks would remain necessary for the EU to protect the integrity of its Customs Union".
And he goes on:
"Theresa May’s increasing talk of the “precious Union” she is seeking to protect from the threat posed by the backstop arrangements is in part a marker of how dependant she has become on DUP votes in Westminster. It is also, however, a smokescreen intended to deflect from the fact that the backstop was not suddenly forced upon the UK Government, but freely accepted as part of the negotiations towards the December 2017 Joint Report. It is not the EU’s fault that, as the (DUP-heavy) Northern Ireland Affairs Select Committee acknowledged in March 2018, the UK Government has not produced any workable proposals for technological fixes which would provide for frictionless trade. Or that the very notion of trade could ever be achieved with as little cross-border friction as the current single market arrangements was a fantasy, and would always bring the supposed backstop to the fore".
“Minimal checks” between Northern Ireland and Great Britain (and the separation of Northern Ireland from post-Brexit UK trade deals) become, for the EU, the price of the UK Government’s insistence on rejecting the EEA option post Brexit. Indeed, for the EU, it is the UK Government’s rejection of the EEA option which stands to impose East-West barriers in the Irish Sea, not the EU’s negotiating position".
He argues that firstly, the 1985 Anglo-Irish Agreement and then later the 1998 GFA ceded some sovereignty over Northern Ireland to the Irish Republic and if there is to be a settlement on the backstop, "the UK Government will either have to move further towards an EEA position or accept Northern Ireland as a territory in which sovereignty will become increasingly complex and overlapping".
I assume he means with the EU retaining some measure of control over the province after Brexit and a border down the Irish sea.
It would indeed be ironic, in many different ways, if Brexit was to founder on commitments in Ireland, a country with whom we have shared a difficult relationship for eight hundred years, made by Tony Blair and John Major.
