Thread by @DPhinnemore

Is the #Brexit #backstop anti-democratic?

A persistent argument against it is the claim that it makes Northern Ireland a voiceless "rule-taker".

Here's a mega-thread based on research with @hayward_katy taking a closer look at this issue.

1/25

Boris Johnson insists on calling the backstop ‘anti-democratic’ noting that there is no ‘sovereign’ means of exiting it and it applies to ‘large areas of single market legislation in Northern Ireland’ over which the people of NI have ‘no influence’

assets.publishing.service.gov.uk/government/upl…

2/25

The DUP take a similar line.

Nigel Dodds has claimed that the backstop ‘would see laws made in Brussels impacting the economy of Northern Ireland with no-one in London or Belfast able to vote on them or even ask a question about them.

mydup.com/news/article/c…

3/25

The DUP’s Sammy Wilson claimed recently that the backstop gives 'carte blanche to the EU that whatever regulations you pass in future, we will automatically apply to Northern Ireland'

ft.com/content/673df5…

4/25

Greg Hands, champion of Alternative Arrangements, claims there is 'no democratic say' for Northern Ireland's people on 'most of the rules of its own economy' and Northern Ireland would be subject to a 'huge range of EU rules, and no say over them'

https://twitter.com/greghands/status/1172422518147207169?s=11

5/25

But how do these claims about ‘no influence’, ‘no say’, ‘carte blanche’, ‘no vote’ and not even being able to ‘ask a question’ stand up in the face of what is actually provided for in the Protocol on Ireland/Northern Ireland regarding the backstop?

6/25

First, how ‘huge’ is the range of EU rules that would apply to Northern Ireland under the backstop?

According to the UK government, it is ‘a small fraction of EU single market rules, and only those strictly necessary to avoid a hard border’

assets.publishing.service.gov.uk/government/upl…

7/25

The acts listed in the Protocol's annexes (notably Annex 5) include 182 Regulations and 150 Directives.

This is no small number, but it's certainly not the entirety of the EU’s single market legislation, not least since free movement of services and people are not included

8/

More than a third of the acts concern animal and plant health and food security.

Many other acts are technical (e.g. on electromagnetic compatibility).

Some have wider policy implications and have attracted controversy (e.g. REACH directive).

9/25

Others cover EU state aid rules and the EU VAT and excise regimes.

EU acts related to the Single Electricity Market on the island of Ireland are also included

10/25

What all bar a handful have in common is that they were adopted while the UK was a member state, with the UK fully involved in their adoption.

The adoption of much of the legislation also involved the EP and so the UK’s MEPS including three MEPs from Northern Ireland.

11/25

A key concern with the backstop is that if/when the EU adopts amendments or replacements to these acts, they automatically apply to Northern Ireland.

The primary reason: to maintain the free movement of goods.

12/25

As non-member state, the UK would not vote in the adoption of these amendments of replacements.

It would be wrong, however, to say that the UK/Northern Ireland would have ‘no influence’ or ‘no say’ in the process.

13/25

The Protocol provides for a UK-EU Joint Consultative Working Group (JCWG) specifically for the backstop arrangements. It reports to a UK-EU Specialised Committee on the Protocol's implementation, which reports to the UK-EU Joint Committee overseeing the Withdrawal Agreement

14/

The JCWG is an important body comprising officials and experts meeting at least monthly to exchange information and consult, processes that can readily encompass analysis of the implications for Northern Ireland and requests for these to be taken on board.

15/25

Originally provision was made for UK representatives to attend ‘upon invitation’, ‘exceptionally’ and on a ‘case-by-case basis’ meetings of comitology committees, Commission expert groups and other ‘bodies, offices or agencies’. This could be reinstated.

16/25

The Specialized Committee (SC) comprises UK and EU Representatives “with the appropriate expertise"
It may discuss ‘any point’ raised by the EU or UK ‘that is of relevance to this Protocol and gives rise to a difficulty’ and make recommendations to the Joint Committee.

17/25

Importantly it will also examine proposals for the North-South Ministerial Council and the North-South Implementation bodies set up under the 1998 Agreement and consider issues raised relevant bodies responsible for human rights and equality under the 1998 Agreement

18/25

Given the existence of the JCWG and Specialized Committee, it is clearly incorrect to say that Northern Ireland would have ‘no say’ over and would not even be able to ‘ask a question’ on matters relating to it

The effectiveness of the say depends on at least two factors:

19/25

- Identifying the Northern Ireland interest

- Being able to articulate the interest through the direct involvement of NI representatives in the JCWG in particular, the SC and the Joint Committee (JC)

Determining representation is a matter for the UK government

20/25

Identifying the NI interest and being able to effectively articulate it are also important because the JCWG, SC and JC will consider ‘new’ EU acts relevant to the backstop arrangements.

Such acts will not apply automatically. Instead they will be discussed in the JC

21/25

The JC will then decide whether the new EU act should be added to the Protocol.

If there is no agreement to adopt the new EU act, the UK and EU will consider ‘all further possibilities to maintain the good functioning of this Protocol’ and take any necessary decision.

22/25

Assuming no decision has been taken within an unspecified ‘reasonable’ time, the EU may take ‘appropriate remedial measures’.

What form these may take is not specified

23/25

These arrangements mean that is wrong to assert that the EU has 'carte blanche' to automatically apply EU acts to Northern Ireland.

The Protocol's scope is defined; and the application of new EU acts requires UK agreement.

But, EU action possible if act not applied.

24/25

Summary:

- EU acts applicable to NI under the backstop are defined and limited

- Amendments/replacements apply automatically

- New EU acts only apply with UK approval

- Dedicated institutional arrangements can provide NI with a voice in backstop's implementation

/end