So the backstop has become the frontstop. British prime minister Boris Johnson and his allies will claim victory: the hated backstop has been ditched. It is in Ireland’s interests not to contradict that claim too vehemently – allowing the Brexiteers to save face is a necessary part of the process.
Given that Johnson came to office in July declaring that he would not even begin to negotiate with the European Union unless it agreed in advance to scrap the backstop, there is a lot of face to save. If a good outcome for Ireland is to be achieved, a certain amount of strategic amnesia will be required. We must forget, for example, Johnson’s speech to the DUP conference less than a year ago, warning that if Northern Ireland had to continue to follow EU rules, it would “leave Northern Ireland behind as an economic semi-colony of the EU and we would be damaging the fabric of the union with regulatory checks and even customs controls between GB and NI”. We must not say too loudly that this is exactly what Johnson has now agreed to do.
But let’s be clear nonetheless. The backstop has not been “ditched” or “scrapped”. It has been triggered. It was an “unless and until” conditional concept – if the British do not get a frictionless free trade deal with the EU and if the “alternative arrangements” of hitherto uninvented technologies do not make all the problems of the Border go away, this is what will happen. Most of that conditionality has now been removed. The backstop is now up-front – those “regulatory checks and even customs controls between GB and NI” will be, if the deal is passed at Westminster, an open and direct fact.
This should not be a surprise to anyone, even the DUP. As early as August 2016, Arlene Foster put her name beside that of Martin McGuinness on a joint letter to Theresa May stressing that “this region [Northern Ireland] is unique” and actually demanding that the then prime minister be aware of the “unique aspects of negotiations that arise from the Border”. The new text of the Irish protocol to the withdrawal agreement repeats that same key word, “unique”. It appears four times in all, twice in one of the opening sentences: “It is necessary to address the unique circumstances on the island of Ireland through a unique solution.”
That solution may be Byzantine in detail but it is, in essence, obvious. There have always been just four options for any British government: no deal, a new referendum, a deal like May's that keeps all of the UK very closely aligned to the single market and the customs union or a bespoke, very soft Brexit for Northern Ireland. Parliament has blocked the first, Johnson is against the next two, so the unique solution for Northern Ireland's unique circumstances is all that remains. If the DUP did not want it, it should have supported May. By refusing to do so, it made its choice by default. It used its power in the only way it seems comfortable: negatively, to block May's deal. It has ended up with the one that is, from a unionist perspective, much worse.
Having failed miserably in his efforts to bluff the EU into capitulating on the backstop, all Johnson could really do was, in his own phrase, “polish a turd” – or in more polite terms turn “semi-colony of the EU” into “great new deal”. There are two coats of polish. One is the complex mechanism for securing consent from the Northern Ireland assembly. This is, on paper at least, the one serious concession the Irish Government and EU have made to Johnson – it sustains in ghostly form the idea of a time limit to the backstop. But in reality, the crucial changes that make alignment with the EU the default option and that deprive the DUP of a veto make the concession much more minor than it seems.
The other coat of polish is one that Eamon de Valera, of all people, would have recognised. The irony of the plan for Northern Ireland to remain legally in the UK customs regime, while in practice following the EU’s, is that its most obvious precedent is in Irish nationalism. De Valera’s solution to the conundrum of getting on with governing 26 counties while claiming jurisdiction over 32 was the handy dualism of de jure/de facto: the North would be claimed de jure as part of the State while recognising that de facto it was not. There is something almost amusing in this Jesuitical device now defining Northern Ireland itself – UK by law, EU by fact.
The precedent would be enough to give the DUP nightmares – if it were not already having them. In one sense, the party is right to claim that the new deal will, over time, loosen Northern Ireland’s place within the union. But this is merely the working out of Brexit itself, which of course it supports enthusiastically. There has been ample warning to the DUP that, given a choice between the “precious, precious union” and Brexit, Johnson and his allies (and their voters) would always go for the latter. Now, the prime minister they so foolishly trusted has made that brutally clear. Those of them who are biblically-inclined might ruefully recall Psalm 146: put not thy trust in princes.