Is there any way to de-dramatise the concept of a sea border so that unionists might accept it?
It would be enormously helpful if there was. Checks across the Irish Sea are by far the easiest way to avoid a hard border under almost every conceivable Brexit scenario.
Selling a sea border looks hopeless now, with the issue becoming inseparable from “dividing our country in two”, to quote prime minister Theresa May after last week’s disastrous Salzburg summit.
Yet a sea border gained traction among some unionists in the 18 months following the EU referendum, when it was clear it would not be a new border but simply the land border administered at the coast. The phrase “sea border” is perhaps a large part of the problem – “port facilitation” would have sounded less alarming, and should have been straightforward enough to explain. After the referendum, as it became apparent even the most basic infrastructure at Newry was too dramatic for nationalists, the British government proposed pushing checks back 20 miles to Banbridge or Lisburn. Unionists found this entirely understandable and voiced no concerns. Pushing checks back another 20 miles would have located them safely inside the port of Belfast. Once goods were through the port, random inland site visits by customs officers would ensure everything stayed north or headed south as dockside paperwork specified – or at least, it would provide as much assurance as exists today.
Advantage obscured
The problem began when the backstop was unveiled in the December 2017 Draft Withdrawal Agreement, introducing requirements for regulatory alignment and a separate customs territory. Suddenly, the sea border became a prospective true border, facilitating real division between Northern Ireland and Britain. Its basic advantage in avoiding a hard border became obscured.
The backstop sea border is not inevitable, of course – a better future trading arrangement remains everyone’s aspiration.
Suddenly, the sea border became a prospective true border, facilitating real division. Its basic advantage in avoiding a hard border became obscured
Nor would it be an unprecedented division within a nation state. Last week, EU chief negotiator Michael Barnier compared it to the Canary Islands and the rest of Spain.
It is a pity this de-dramatising example was not mentioned prominently from December 2017 – a cynic might say the EU is reluctant to highlight how flexible it can be with its supposedly immutable rules. Alas, there has now been too much drama for this contribution to calm nerves.
You would need a heart of stone not to laugh at Theresa May’s latest proposal, briefed to Taoiseach Leo Varadkar ahead of the Salzburg summit, to give Stormont a final veto on the backstop.
All the erroneous claims by Brussels, Dublin and northern nationalists that trading arrangements invoke the Belfast Agreement’s consent principle have been pointed back at them.
EU diplomats are reportedly furious, telling the Guardian there is no precedent for a sub-national parliament implementing an agreement once it has been ratified as a treaty.
That final qualifier is important. Sub-national parliaments do rule on EU agreements before they are ratified – Belgium’s regional assemblies threatened to sink the EU-Canada trade deal last year.
However, there is little hope of Stormont returning before the Withdrawal Agreement must be signed and it would never agree to the present backstop regardless.
Mildest incarnation
Unionists are a minority in the northern assembly but they can block anything via cross-community veto. Thanks to the backstop, they have come to view even the mildest incarnation of a sea border as a constitutional slippery slope, with diverging EU and British regulations hardening checks at the ports until Northern Ireland is effectively pushed out of the UK.
Observers have already warned the mere prospect of handing Stormont such a decision means it might never be restored.
Ironically, under future trading arrangements other than the backstop, Stormont would have an important role in setting unique regulations for Northern Ireland. The DUP has advocated this as a key advantage of Brexit and the British government intends to oversee it UK-wide in a way that would stop a sea border hardening into a real border.
Brexit will return powers from Brussels affecting 141 policy areas devolved to Northern Ireland, along with 111 to Scotland and 61 to Wales.
These powers, such as agriculture, will return first to London, which will devise so-called framework agreements to ensure regulations remain sufficiently aligned at the national level to prevent internal frontier checks becoming necessary – most notably at the Scotland/England border.
What remains of the powers will then be passed to Belfast, Edinburgh and Cardiff, to deregulate or alter regulation as they see fit.
If Stormont was asked for its verdict on this in the future trading negotiations – or just ordered to comply, as it seems may happen in Scotland – there is no good reason why unionists should not accept it, along with a sea border to avoid a hard border, rendering the backstop redundant.
But first, the fear the backstop has caused must be assuaged.
Is it too late for the phrase “port facilitation and UK frameworks”?