Brexit and new UK proposals to replace the Irish "backstop"

On 2nd October 2019, to much fanfare at the Conservative Party annual conference, Boris Johnson, the UK Prime Minister, announced new proposals to solve the Irish "backstop" issue.

In a 7 page "Explanatory Note" , accompanied by a somewhat breezy "can do"  4 page letter to the President of the European Commission, Jean - Claude Juncker, Mr Johnson offered what he described as "reasonable compromise", establishing "the broad landing zone" in which he said that he believed "a deal can begin to take shape". This suggests that he and his Government are open to some discussion on the details.

According to Mr Johnson's letter, the new UK proposals are based around 5 elements :-

•  A commitment to maintain compatibility with the Belfast ( Good Friday) Agreement;
•  A commitment to "long - standing areas of UK - Ireland collaboration" , including     not only the principles of the Good Friday Agreement but also the Common  Travel Area, maintaining the rights of all those living in Northern Ireland, and maintaining North/ South co-operation;
•   The potential creation of an all- Ireland regulatory zone, covering all goods including agrifood.
•    The regulatory zone "must" depend on the consent of those affected by it  and, accordingly, the Northern Ireland Executive and Assembly should have the opportunity to "endorse those arrangements" before they come into force at the end of the transition period and every 4 years thereafter.
• The whole of the United Kingdom ( including Northern Ireland) will cease to be part of the EU Customs Union at the end of the transition period. He described this as a "fundamental point".

The net effect of the new UK proposals is that following the end of the transition period (which is not defined but  which under Mrs May's  2018 Withdrawal Agreement would  end on 31st December 2020)  the UK would start on a new regime with a customs border between Northern Ireland and  Ireland and a  regulatory border between Great Britain and Northern Ireland  to help realise the objectives of the all - Ireland regulatory zone for goods. "Two borders for 4 years" is how some commentators have described the proposals.

Mr Johnson emphasised, however, that there would be no customs posts at the Northern  Ireland/ Ireland frontier and  that any checks would be done discreetly and at a distance from the physical border between the two parts of Ireland. The proposals are predictably heavy on technological solutions to solve practical issues of regulatory checks - the EU does not, however, appear to believe that such technological solutions are yet available.

The Explanatory Note contains a certain amount of detail to underpin the principles behind the proposals - which preserve some of the elements of  the 2018 Withdrawal Agreement  but which also dispense with some important concepts such as the "level playing field " measures contained in Annex 4 ,which  were intended to address certain competition , environmental protection,  taxation, labour and social standards and   other issues on an all - Ireland basis.

There is speculation as to where these new proposals will end up but so far nobody has rejected them outright and , bearing in mind Mr Johnson's " broad landing zone " analogy , it seems clear that at this point at least Mr Johnson's door remains somewhat open for further discussions.

Clearly, nobody wants to be blamed for what might be the catastrophic consequences of a "no deal" Brexit.

There have been some suggestions that the EU might respond with a time - limited version of the 2018 Withdrawal Agreement so that the original "backstop" deal would remain  (with, for instance, the whole of the UK staying in the EU Customs Union) but with a time limited duration  rather than possibly  forever as envisaged by the 2018 Withdrawal Agreement.

The UK Government is seeking to reach a deal prior to the European Council meeting on 17th and 18th October 2019 - which is very ambitious.

The frustration both in the UK and the EU  at the lack of resolution on Brexit is such, however, that the EU and  UK  sides may well do all their best to reach a consensus before the European Council meeting.

The world will be watching!