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Cast-iron and vital, or an anti-democratic bureaucracy: what is the Irish backstop?

Should it be for a limited period of time or not? Should it apply to the UK as a whole, or just Northern Ireland?

EU referendum Boris Johnson, who wants to scrap the backstop, waits for a train at Doncaster Railway Station. PA Archive / PA Images PA Archive / PA Images / PA Images

WAITING, ON THE Irish backstop.

On 8 December 2017, at the tailend of phase one of moulding the Withdrawal Agreement into shape, a carefully worded short phrase was included by EU and UK negotiating teams with the aim of preventing a hard border from reappearing on the island of Ireland. 

The backstop, also known as the Irish Protocol, would ensure that there would be “regulatory alignment” between Ireland and Northern Ireland after Brexit, no matter the negotiating stances or demands either of them would make. 

Avoiding a hard border is something that Ireland, the UK and the EU have all said they want to do – but it’s proved to be one of the most contentious parts of an already tense Brexit debate. It’s formed the basis for many a political column in Ireland and the UK, and has been politicised massively

Since the freshly ‘elected’ Boris Johnson has taken the reins at 10 Downing Street, he’s called the backstop “anti-democratic”, adding to previous statements he made about it where he said it needed to be “scrapped”, and “binned”. 

For Johnson to succeed in his Brexit policy, the platform upon which he became Tory leader, he needs to either get a Brexit deal without the backstop, or push for a no-deal Brexit – the only two options to get the UK out of the EU by 31 October, as he promised.

So what does this mean for the backstop – what is so unpalatable about it, and is there room for manoeuvre so we can reach a compromise?

The Protocol

original (4) European Commission European Commission

Ahead of negotiations with the UK, the EU said it was prioritising three issues, or red lines; these were a ‘divorce’ settlement (or a fee for leaving the EU); securing the rights of EU citizens living in the UK; and stability for Northern Ireland.

The backstop would become the solution for the third priority here. 

Put simply, the backstop ensures that a hard border won’t reappear on the island of Ireland, no matter the outcome of Brexit or the subsequent trade talks between the EU and UK. The term ‘backstop’ was a sporting term originally: in cricket, it’s the person that keeps the other team from scoring; and in baseball, it’s the net that stops innocent onlookers getting injured by a long-shot. Apt.

Put slightly more complicatedly, the backstop means that Northern Ireland would stay ‘aligned’ to the regulations of the Single Market and the Customs Union if the EU and the UK cannot agree a Free Trade Agreement (FTA) that would share the same customs rules by December 2020.

The EU has said it can’t discuss future trading matters with a current member state, so the UK has to leave the EU before they can discuss trade. This is what led to the Brexit ‘divorce’ deal, or the Withdrawal Agreement, which outlines the conditions upon which the UK leaves the EU.

Originally, the backstop was to apply to just Northern Ireland, and the UK would be free to put in place whatever customs and regulatory rules it wanted. But when the wording was being finalised in December 2017 the DUP, which is propping up the Tory government in Westminster, said that Northern Ireland couldn’t be treated differently to the rest of the UK (despite other societal changes already in place).

Theresa May then flew back from Brussels to London, to discuss a more acceptable wording, which would be agreed and signed off on by the end of that week. After this, the backstop would also mean that there would be “no new regulatory barriers develop (sic) between Northern Ireland and the rest of the United Kingdom”. 

Boris Johnson arrives as Prime Minister to Downing Street and makes his first speech. London, UK. 24/07/2019 Boris Johnson wants rid of the backstop - will he get his way? Ik Aldama Ik Aldama

As it stands, the exact wording on page 303 of the draft Withdrawal Agreement, is:

To avoid a hard border on the island of Ireland: “RECALLING the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls, and bearing in mind that any future arrangements must be compatible with these overarching requirements”.

To avoid a border along the Irish Sea: “UNDERLINING the parties’ shared aim of avoiding, to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as their implementation, controls at the ports and airports of Northern Ireland”.

Government launch of Ireland's new Policy for International Development Varadkar and Coveney have been staunch defenders of the backstop. PA Wire / PA Images PA Wire / PA Images / PA Images

These lines meet the objectives of those on both sides of the Brexit negotiating table… but this is the part that has caused the problem:

NOTING that nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market.

The whole of the UK being in the backstop means that they cannot strike free trade agreements with other countries, or set their own standards of customs rules and regulations – and being able to decide their own rules was a big part of the hoped-for Brexit benefits.

To avoid the backstop being needed, there would have to be the same, or very similar custom rules and regulations for products, food, animals, people and vehicles between the UK and the EU – or Northern Ireland and Ireland. If this doesn’t happen, the changes could be as dramatic as two different time zones on the island of Ireland. 

But until talks between the EU and UK on trade begin, it won’t be clear how many regulations and customs checks will be the same or different, and because of that it isn’t clear whether the backstop is necessary.

Efforts to find compromise

Since the backstop was agreed between the EU and the UK, there have been bitter rows about whether it’s “vital”, especially as it’s been cited as the reason why Brexiteers voted against the Withdrawal Agreement in such historic numbers.

Among the compromises that have been considered to ease the concerns of Brexiteers, have been:

Should it be for a limited period of time or not? The UK side says it should be time limited, which would give them time to work out a Free Trade Deal, or if not that, give time for technological solutions that it argues would preserve a frictionless border.

The UK side has also argued that a Brexit deal with this type of backstop is better than no deal.

The EU, so far, has responded by saying it needs to be an “all-weather” backstop, and would be pointless if it were temporary.

If the backstop ends in five years’ time, for example, and there’s no Free Trade Deal or new technology, a hard border on the island of Ireland couldn’t be avoided.

Would it apply to the UK as a whole, or just Northern Ireland? Theresa May’s government wanted it to apply to the whole of the UK, but this has been shot down by Johnson’s government, who wants the backstop scrapped entirely. 

Theresa May also said previously that if at the end of 2020, a trade agreement isn’t struck, the UK would choose between a UK-wide customs backstop or a short extension of the implementation period, which would just buy more time in trade talks.

If there’s no agreement on the backstop – as in, if the UK government won’t agree to “regulatory align” with the EU – then there is no Brexit deal and the UK will go crashing out of the EU.

Ironically, if the UK does go crashing out of the EU, it’s most likely that a hard border will automatically reappear on the island of Ireland anyway – which is something German Chancellor Angela Merkel admitted to previously.

The EU has also said it has costed erecting a variety of borders in Ireland.

Taoiseach Leo Varadkar warned EU leaders and the new UK government, that if a hard border does return to the island of Ireland, it could see a return to Troubles-era violence.

General Election 2017 aftermath Theresa May and her colleagues sit with Arlene Foster and the Tory leadership, June 2017. PA Archive / PA Images PA Archive / PA Images / PA Images

From the outside, it seems as though both the EU and UK thought that the other side’s stance on the backstop would soften.

Theresa May repeatedly said that she wouldn’t accept a deal that would “carve off” Northern Ireland from Great Britain, and that she would preserve the integrity of the United Kingdom.

Barnier tried to “de-dramatise” the idea of customs checks under a Northern Ireland-only backstop, saying that it would simply increase the number of goods and vehicles checked at ports and airports.

Theresa May’s stance on the backstop softened as she ran out of options to get her Brexit deal through parliament, and ended up with the UK-wide customs deal that we currently know as the backstop, which has been voted down by the British parliament.

(Even if it was removed from the Withdrawal Agreement, it doesn’t look like the House of Commons would pass it.)

Alternative arrangements, and technological solutions to solve the border issue have been suggested as a way of making the backstop unnecessary – but an internal document at the Home Office previously suggested that the technology needed to avoid the UK adopting the EU’s rules, wouldn’t be in place until 2030.

Added to that, any technological solutions to avoid a hard border would involve some sort of hardware, which could be targeted by dissidents as a symbol of a divide in Ireland.

So, the backstop has become a symbol of the scale of the division between Brexiteers and the EU – for some in the UK it represents unnecessary bureaucracy that prevents people from “getting on with it”, while to the EU, it represents a safety net for peace in one of its regions. 

And that divide might lead us to a no-deal Brexit in three months’ time.

original (5)

A version of this article appeared on TheJournal.ie in October 2018, and has been updated to reflect a change in the political landscape.

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    Mute Joe Johnson
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    Aug 2nd 2019, 12:11 AM

    The Backstop in an insurance policy and if the Brexiteers don’t like it then it should revert back to applying to the island of Ireland only.

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    Mute Ashling Visser Bishop
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    Aug 2nd 2019, 12:20 AM

    @Joe Johnson: why didn’t they just say that? Thank you.

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    Mute John kane
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    Aug 2nd 2019, 12:48 AM

    @Ashling Visser Bishop: it’s so crazy what went on in the war of independence and the arrogance the Brit’s had over us. They still show that arrogance!!! I hope to god Leo and the eu hold firm on the backstop. Who do the Brit’s think they are?? Fallen empire

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    Mute Mushy Peas
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    Aug 2nd 2019, 12:49 AM

    @Joe Johnson: while that is the most straightforward and logical thing to do, there is no way it will be accepted by “unionists”.

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    Mute Mushy Peas
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    Aug 2nd 2019, 12:54 AM

    @John kane: Leo and EU hold strong, and we get No Deal. Is that what you want?

    Do you want a border on this island? Because that’s what your comment logically leads to.

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    Mute Gerard Smith
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    Aug 2nd 2019, 3:29 AM

    @Mushy Peas: Nowhere near that yet. Johnson hold no cards. A rebellion already brewing in his own back benches, the parliament poised to block a no deal Brexit with members of his own party helping, the “union” becoming a mess, the US Congress telling him he wont get a trade deal if he messes with open borders in Ireland and even if he doesnt it’s at least 4 years away. Nearly 200,000 jobs in the automobile sector on life support with investment in the industry gone off a cliff and a further 600,000 indirect jobs related to the sector effected, every government ministry reporting it will be a disaster for the UK economy and documents detailing the realities starting to be leaked by a civil service becoming more alarmed every day. His response? – an extra couple of billion for Brexit preparations that need a hell of a lot more money than that, ignoring EU leaders to show he’s “serious”, holding up chickens and kippers at photo shoots and saying “do or die”? Seriously? Why would Ireland or Europe do anything right now other than what they’re doing? Silence is the best weapon in a negotiation and Europe are actually playing this well. For once let’s just not panic, call their bluff and show them they have to be reasonable no matter how many tantrums they throw. They dont have any leverage whatsoever. Johnson already knows he doesnt have the numbers to exit. He’s looking for a scapegoat to hang an election campaign on or he’ll be one of the shortest serving PMs in history. He’s the one taking reckless gambles not the EU or Ireland. We’re already seeing the orchestrated “paddy” bashing in the right wing parts of their media as the pressure mounts and we’re not falling into line like good little pets and doing what we’re told. Now is an opportunity for us to put a different slant on our relationship with the UK. We should take it with both hands. Call their bluff. They need a deal and they know it so they need to pay the price for it. The price for a deal with the US would be a lot more costly for them.

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    Mute Adam Kelly
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    Aug 2nd 2019, 7:33 AM

    @Gerard Smith: very well said.

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    Mute keyboardwarrior
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    Aug 2nd 2019, 4:28 AM

    I think the DUP are doing a serious disservice to the electrorate in the six counties.
    This would create thousands of jobs as they have a finger in each pie, they are blinded by hatred and resentment and stuck back in age of reformation.
    To be honest would the 26 counties ever be able to deal with them if there was reunification.
    Madness to turn away those jobs though, cutting off their nose to spite their face

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    Mute Diaspora'd
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    Aug 2nd 2019, 6:09 AM

    @keyboardwarrior: The DUP are reminiscent of the “Anglo”Indians during the time of the Raj in India. They like to think they’re patriotic, loyal and “British” but they are from Ireland and when they speak with their accent or go abroad they will always be perceived as Irish and the people they are so loyal to in the “motherland” of England will still always perceive them as being “Irish”.

    Sad really.

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    Mute Barry Somers
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    Aug 2nd 2019, 7:52 AM

    @keyboardwarrior: the dup don’t care about peace or the millions in the North, they after all were the only large party to compaign against the good Friday agreement

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    Mute Declan McArdle
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    Aug 2nd 2019, 7:57 AM

    @Diaspora’d: reminds me of Ali G interviewing a DUP politician: “I’m British.” “So, is you on holidays?”

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    Mute Brinster
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    Aug 2nd 2019, 2:24 AM

    We need a time limited 10 year backstop, followed by a guaranteed border poll on both sides.

    We all know the Brits will do nothing for the next 10 years if they know it limited.

    So in 10 years time even the DUP will know – the rest of Britain don’t want them. By that stage the Scots will have left too.

    Border poll after 10 years of Britain forsaking Unionists = United Ireland.

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    Mute Sonic
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    Aug 2nd 2019, 12:59 AM

    Isn’t it really amazing that in 2019 Irish journalists cannot spell or form grammatically correct sentences? Or perhaps they should front up and admit that they don’t even write any more and use voice recognition dictation which is not proof read? #noexcuse #grownups

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    Mute Bruce Van der Gutschmitzer
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    Aug 2nd 2019, 1:22 AM

    @Sonic: should it be ‘anymore’?! #notevensure :/

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    Mute FlopFlipU
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    Aug 2nd 2019, 6:54 AM

    @Sonic: So anyone who is unable to put word’s together to suit a agenda should be silenced

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    Mute Billy Big Baws
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    Aug 2nd 2019, 2:36 AM

    The worst thing about this is the inability of the Eton educated Tory’s to actually grasp what the border means to the Irish people on the Island of Ireland….. something avoided being talked about in the media in all this is any mention of a return to violence in the north… Republicans at the thought of a border….and Unionists at a border poll….let tell you…by god it’s simmering.

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    Mute Colm Molloy
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    Aug 2nd 2019, 6:04 AM

    Could be the some of the early signs of a reunited Ireland and independant Scotland with the UK becoming a union of England and Wales.

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    Mute Valthebear
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    Aug 2nd 2019, 6:42 AM

    @Colm Molloy: never going to happen. Wishful thinking. Examine current economic data about EU. Britain will do ok in long run after Brexit given size of its economy. Unionists and pragmatic nationalist in the North here will watch events and remain in the union. In Scotland nationalist fervour if anything has cooled since the referendum. What will be more interesting post Brexit is when Brussels ramps up integration and starts removing remaining national vetos on taxation. Listen to Verhofstadt’s last interview. Britain then can utilise tax policy to undermine our FDI. We need to seriously think what our place in the EU will be and stop jumping up and down in the green jersey.

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    Mute Adam Kelly
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    Aug 2nd 2019, 7:38 AM

    @Valthebear: and then do what? Join the commonwealth? Join the British union? Lol.
    No, Ireland should protect it’s place in the single market and NI should not interfere with that at any cost.

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    Mute Paul Kelly
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    Aug 2nd 2019, 7:55 AM

    @Valthebear: the size of UK’s economy is mostly driven by its financial services industry and services is the biggest export out of the UK.

    Once they leave the Single Market, the basis on which a significant amount of that trade is done is no longer there. These companies will therefore have to leave as the domestic market is far too small to be sustainable.

    We’ve already seen the groundwork set with huge (hundreds of billions) funds transferred to Dublin, Frankfurt and elsewhere. Jobs slowly moving too.

    Sterling is not reacting well to No Deal, tariffs to go on all current UK exports, either increased costs to UK (tariffs) or decimation of domestic agri (no tariffs) – it’s not going to be an easy UK future.

    On tax harmonisation – we are one of a number resisting this proposal.

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    Mute Mark Fitzmaurice
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    Aug 2nd 2019, 8:33 AM

    @Valthebear: Our level of FDI is because we are English speaking and IN the EU single market. FDI will always favour us over the UK. The UKs leaving the EU will exacerbate this. Your analysis doesn’t stand up to much scrutiny Val.

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    Mute Valthebear
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    Aug 2nd 2019, 10:11 AM

    @Adam Kelly: ever heard of Switzerland, Iceland etc. Adam? How ridiculous to think you get lols believing Ireland is has not got the wit to decide its own faith rather than being always under foreign dominance. Be it west brits or people like you who naively believe the EU is an utterly benign organisation you have to wonder why we bothered fighting for independence.

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    Mute Valthebear
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    Aug 2nd 2019, 10:18 AM

    @Paul Kelly: mark your words Paul, tax harmonisation resistance will disappear very quickly once the UK departs. Did you listen to Verhofstadt for example during the week re vetos? Organisations are of course strategically preparing for Brexit with operations in and out of the EU. Watch capital and services balance out and return to London after Brexit and sterling level out. Our fear is the UK will become a European Singapore with significantly lower taxation rates that will attract investment away from us. We have to ask ourselves what will this country look like under the current regime in Brussels in a decade or so post Brexit.

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    Mute Valthebear
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    Aug 2nd 2019, 10:22 AM

    @Mark Fitzmaurice: Well Mark, you obviously didn’t scrutinise the musings of Verhofstadt and Von Der Leyen of late if you are so naive to believe they won’t meddle with vetos on corporate tax. You do know they are passionately advocating for a European Finance Ministry to replace national Finance Ministers. Sticking your fingers in your ears pretending it won’t happen isn’t going to do us much good. Scrutinise this.
    https://www.irishtimes.com/business/economy/eu-tax-plan-an-imminent-threat-to-irish-economic-model-1.3674096

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    Mute Valthebear
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    Aug 2nd 2019, 6:35 AM

    Why describe Johnson as ‘elected’ with little speech bubbles? Same thing can be said about Varadkar. And as for Von Der Leyen… Interesting choice by the author.

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    Mute Tony Brady
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    Aug 2nd 2019, 7:37 AM

    If NI is part of the Union why do they not accept NI notes in UK. A simple question for DUU

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    Mute Porterb
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    Aug 2nd 2019, 7:45 AM

    @Tony Brady: Technically NI (and Scottish) notes are not legal tender

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    Mute Wood Jackson
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    Aug 2nd 2019, 8:04 AM

    Ridiculous that the DUP would side with the loony Tories rather than standing by their fellow citizens in the North – who voted AGAINST brexit!! They don’t want the North treated differently??! But it IS different from anywhere else in Ireland and Britain. And to even contemplate jepoardising the incredible GFA to maintain their (already tenuous) links with the idea of the union. How about maintaining links with reality? Imagine being tethered to these willfully unevolved, unreasoned bible-bashers? Not easy at all.

    19
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    Mute Paul Mc
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    Aug 2nd 2019, 2:48 AM

    @Brinster just crawl back under your rock you troll,all you care about is yourself and f the Irish people in the 6 counties.

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    Mute James Gannon
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    Aug 2nd 2019, 1:30 AM

    I don’t expect that leo the toothless lion will stand up to Borris the okaneossary Jonwithoutason over the backstop.. He doesn’t have the where withall to do that.. The tipperary lad will run rings around him with better one off useless lions.. We’re doomed, I say doomed…

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    Mute A Pop Fan's Dream
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    Aug 2nd 2019, 7:13 AM

    So in what circumstances will we be paying import duty and VAT on goods ordered online from UK retailers?

    5
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    Mute Seán Dillon
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    Aug 2nd 2019, 12:32 PM

    Why not let the north vote on the backstop, if the DUP are so sure it’s the right thing to follow Westminster blindly let the people of Northern Ireland decide if they want a backstop.

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    Mute Desmond Farry
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    Aug 2nd 2019, 9:26 AM

    Agreed @ Valthebear. I think that the emergency UK budget due in September will probably slash Corporation Tax rates along with other initiatives.

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    Mute Valthebear
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    Aug 2nd 2019, 10:26 AM

    @Desmond Farry: would imagine its a very real possibility Desmond, and given Varadkar’s stance of late they’ll do it with glee. It’s extraordinary that so many Irish people would prefer to laugh at the Brits than actually analyse what’s going to happen to us.
    https://www.reuters.com/article/us-eu-jobs-tech-idUSKCN1UB1IK

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    Mute Bren Guiden
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    Aug 2nd 2019, 7:05 PM

    The inevitable United Ireland inches closer each day. Partition should never have happened but that’s the legacy of Boris Johnsons aristocratic ancestors left for him to deal with. Northern Irish
    Unionism is on the wrong side of history for it to be UK secured, but in the new Ireland we can hopefully look back and celebrate together the culture of William of Orange and all the culture around it. Remember the current Irish flag is 3 colours one being Orange.

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    Mute Jeannie Laing
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    Aug 10th 2019, 3:24 PM

    Dup , has a lot to answer for. Up Boris’s ass,

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