The problem with the idea of a Northern Ireland-only backstop

Central to the discussions on Brexit and the backstop these days is Boris Johnson's repeated insistence that the latter is inherently "anti-democratic and inconsistent with the sovereignty of the UK".

The British prime minister has made much of how the backstop will deny a say to Northern Irish and British citizens over crafting the single market rules they will be forced to comply with if they stay in the single market.

In the Brexit “technical talks” this week in Brussels, officials were discussing, we were told, “preliminary ideas on how any all-island SPS [food and animal regulations] solutions could involve the consent of all parties and institutions with an interest”.

If the American Revolution was fought under the slogan “no taxation without representation”, today’s Brexiteer equivalent is “no regulation without representation”.

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How that challenge can be squared with leaving the EU is deeply problematic. By definition, if you leave an organisation you are no longer party to its decisions.

But if Johnson decides he wants to swing a revamped version of Theresa May's all-Ireland backstop compromise, while keeping the DUP on board, then some mechanism for "consent" for the Northern Ireland Assembly to any new single market rules from Brussels will be needed.

Do the North’s own peculiar democratic mechanisms for safeguarding cross-community consensus, notably the “petition of concern”, so beloved of the DUP, perhaps provide an answer?

The petition is a mechanism in the Assembly that allows a substantial minority to veto a majority decision if it feels it threatens minority interests or values – the DUP has used it, for example, to block abortion and gay marriage.

‘Decision shaping’

One model for backstop consultation for Northern Ireland in the EU legislative process is that formalised in the European Economic Area (EEA) treaty – Iceland, Norway and Liechtenstein, members of the European Free Trade Association, take part in the European single market and have to accept rules and regulations from the EU without a vote on their adoption.

But an elaborate consultation process, formal and informal, engages those countries deeply in what they call “decision shaping”. They join committees working on draft commission proposals, they participate in the many specialist EU agencies whose remit includes the single market, and they make written submissions to the institutions, including MEPs, at every stage of the legislative process.

Reports from those three countries suggest they exercise significant influence on the final product.

But that would scarcely be enough for the DUP. Going further, to provide a formal “consent” procedure for the Northern Ireland Assembly, is much more problematic. An ability to consent implies a right not to consent.

And a refusal to accept a new internal market regulation would inevitably immediately jeopardise the open border – in Switzerland, for example, a "guillotine clause" in its EU agreement provides that all regulations come into force at the same time, but if one of them is terminated, then so are all the others.

Any sustainable agreement on keeping the North in the single market with an open border will have to be based on a presumption, a default position, that the North will adopt and implement the requisite rule changes as they arise. And any potential “democratic” veto will only be acceptable on the basis of a high bar – it would have to reflect a real cross-community consensus.

Following her meeting with Johnson on Tuesday, DUP leader Arlene Foster said that the party continues to want the UK to leave the EU with a deal, but that any solution for the Border, notably the backstop which she opposes, must command the support of both communities in the North.

Presumably, Foster would not then in principle oppose the use in the Northern Assembly, post-Brexit, of a petition-of-concern mechanism to ensure that an attempt to vote down new single market regulations could be blocked? Unless the vote was genuinely cross-community.

Democracy comes in many forms.