So have we got any closer to a cunning plan for getting rid of the backstop? In last night’s leader candidates’ debate and in this morning’s hustings before the Westminster lobby, plenty of macho but no real meat.
Michael Gove says there is no candidate in the race who understands the politics of Ireland better than he does – he really does . He says he would look for other ways of avoiding the backstop. How well did he do? Judge for yourself, as he was repeatedly challenged on the Today programme this morning by John Humphrys.
Humphrys:“You have no specifics, on the backstop for instance. You want not to have an indefinite existence of the backstop.
Gove “I have lots of specifics but let me give you two. One specific difference between me and other candidates, other candidates say if we’re almost there on October 31 but not quite there, tell you what we will rip up all the progress we’ve made and try to leave without a deal…That would mean a vote of confidence in Parliament, a General Election and Corbyn in Downing Street by Christmas. I will not do that. And then on the backstop, it is clear in EU – “
Humphrys “Well what is it, what is the plan? I don’t know what the plan is.”
Gove Here is the answer. They key things is in EU law it is explicit that the backstop must be temporary… There are ways in which we can ensure that we have both an exit mechanism and a time limit in order to ensure that we don’t either have to go in it, or if we are in it, we’re not in it for any length of time.”
Humphrys “As simple as that? It’s extraordinary that the existing Prime Minister didn’t go for it if it’s that simple.”
Gove: “One of the key things is that it was only towards the end of Theresa’s premiership that we secured an agreement from the EU in Strasbourg to work on alternative arrangements to deal with some of the issues on the Irish border.”(On the EU “flatly refusing” to re-write the Withdrawal Agreement).. They have made it clear that they will work on alternative arrangements that deal with the real issues on the Irish border… Those issues relate to the position of Northern Ireland’s nationalist community, to the specific interest of cross border communities and also cross border trade. All of those issues can be dealt with… “We can make sure we have nationalist representation in UK Parliament by restoring the institutions in Northern Ireland and we can also make sure we deal with cross border communities by making sure that we have investment… And we can deal with cross border trade by having ways in which we do not need checks at the border.”
Jeremy Hunt at the lobby hustings this morning .
Q: Do you accept that the Malthouse compromise alternative arrangements plan will not knock out the need for a backstop?
Hunt says you have to look at where we are now.
He says he thinks the EU would be flexible if a new leader came along with new ideas.
Q: Do you accept the definition of a hard border in Ireland drawn up by Theresa May in December 2017?
Broadly, yes, says Hunt.
Sajid Javid the former banker who’s offering to pay for Ireland’s border arrangements without knowing what they might be.
Q: Do you accept the definition of a hard border in Ireland negotiated by Theresa May in December 2017?
Javid says he does not have that definition in front of him. Peston says he does not know whether he accepts hard border definition built into 2017 joint report and Withdrawal Agreement. So it is impossible to know whether he would renegotiate backstop to secure backing for Brexit deal from DUP and Tory Brexiters. But he is clear he would not agree to anything that would lead to infrastructure being put on that border.
If the Tories are in denial about the backstop and the border, the Irish government have impaled themselves on its hook. In a new paper in a series for the think tank Policy Exchange called What do we want from the next prime minister?, the unionist supporter Lord Paul Bew has returned with ammunition for the Tories’ case that at the same time respects Irish interests. Bew’s repeated argument that the backstop may be in breach of the consent principle will be contested and the absence of the Assembly scarcely helps. He invokes the economic and Indo commentator Dan O’Brien in support of his case. But O’Brien is something of a lone voice, at least in speaking out so boldly. If Varadakar changed tack on the backstop now without Martin following suit, he would instantly become politically vulnerable . So far the Tory candidates have offered sweet FA to attract him, if we discount Javid’s absurd bribe.
Is there anything in Bew’s analysis that would grab attention to help finesse the backstop? Introducing a Brexit role for the Assembly risks complicating the Stormont talks still further without providing a clear solution, although his general plea for ending British passivity towards the governance of Northern Ireland should certainly be heeded. Gove at least would respond, but for good or ill who knows? He has a lot more to learn than he thinks.
Adopting May’s “veto” role for the Assembly over a common customs area for the whole UK is the NI tail waging the GB dog and will surely remain unacceptable to English nativists and the DUP alike. And then there’s the regulations issue. It’s very hard to see any outcome that works for the NI and border economies that doesn’t contain the backstop elements of an open border and compatible regulations- only jointly administered and with expressed general consent.
Is is possible to obtain unionist and Conservative consent via the operative GFA institutions? Bew doesn’t attempt an answer. Could a time limit or “release” clause be embraced with minimum delay in the final stage negotiations, on the argument that the backstop creates more of a threat to border security than its solution? It seems a long shot as it would require Dublin and the EU to do a complete volte face. It all seems a long way from the DUP’s stance. The alternative of the original NI only backstop would be their great betrayal
The foreword to Bew’s paper is by Sir Paul Brady, the chair of the 1922 committee of all Tory backbenchers whose amendment translated into the Malthouse compromise was the only one to pass the Commons – only to be rejected by the EU.
“Today, in an era in which the Union is being questioned and challenged, the cohesion of the British nation state must be the absolute priority of anyone seeking to hold the highest office. To that end, one of the first jobs of the new Prime Minister will be to seek some sort of way out of the impasse on the Irish border..
Policy: the government should seek a new approach to the Irish border issue as part of a broader strategy to stabilise and secure the Union. It should work towards a new memorandum of understanding with the EU, and especially the Irish government, about how the Irish border will be managed in the future that puts the preservation of the peace process at its core.
Specifically, the government has been too pliant in accepting the EU’s argument that the backstop is the only way to protect the terms of the Good Friday Agreement…. EU negotiators continue to insist that there will be no reopening of the Withdrawal Agreement or changes to the terms of the proposed backstop. But nor do they want responsibility for asking the Irish government to put up a hard border in the event of a no deal (thereby creating precisely the situation that they sought to avoid). As such, there is room for further constructive dialogue on the backstop (along with flexibility in how it is interpreted) in a way that addresses everyone’s concerns. But the British government needs to take the lead, pushing back against the false narrative around the peace process (of which it is the protector-in-chief) and changing its approach.
The Good Friday Agreement has been ripped out of its original historical context.. The idea that the backstop protects the Good Friday Agreement has become an article faith at the EU; but this is based on a highly partial reading of the peace process. The Good Friday Agreement is a considerable achievement of statecraft, brought about by close Anglo-Irish cooperation. But it has been weaponised by the Irish government and the EU in a way that risks contributing to instability in Northern Ireland. It is the British government that pays for the maintenance of peace in Northern Ireland.
But it is patronising to the people of Northern Ireland for the EU to style itself as more concerned about keeping the peace than the British government. Dublin’s main point is that Brexit could threaten the cross-border cooperation measures developed largely since 1998. But many of these issues are low-level and soluble and need not have been elevated to the sacrosanct status they are today. In fact, in its present form, it is the Withdrawal Agreement that potentially endangers the terms of the Good Friday Agreement (by raising the prospect a top-down imposition by external authorities without formal democratic control).
Specifically, as a number of leading players in the Northern Ireland peace process have argued, the backstop potentially undermines the principle of consent that is so vital to the settlement in Northern Ireland. It undermines Northern Ireland’s status within the UK and erodes the control of Northern Ireland’s Assembly over the pace of North-South cooperation. As the distinguished, pro-EU, Dublin-based economist Dan O’Brien set out: It would change the constitutional status of Northern Ireland. Voters there would be disenfranchised. The Parliament making the swathes of laws governing their commerce would have its seat in Strasbourg and voters in Northern Ireland would have no representatives in it. The highest court in the land would be in Luxemburg. Again citizens of Northern Ireland would have no role in the running of that court. EU law would be supreme over UK law in Larne. It would not be across the water in Stranraer. (Sunday Independent 10 March 2019).
Policy: the government should make sure that any deal on the Irish border protects the “principle of consent” which is the bedrock of the Good Friday Agreement (GFA) and is also reconcilable with the UK’s prior commitments under international law (such as UN Security Council Resolution 1373 on border security). There should be a commitment on all sides to ensure that future changes affecting regularity alignment should not be made until it has been accommodated to the Good Friday Agreement.
Ironically, there is growing recognition that the EU’s hard-line stance (putatively in solidarity with Dublin) might well have highly negatively consequences for Ireland itself, which stands most to lose from no deal. Any hard border that Ireland is forced to put up would hurt the Republic more than other parties, making a mockery of its declared strategy to avoid such an outcome. There is a growing recognition of this of quandary in Dublin..
It is also worth noting that a number of senior Europeans are wondering.. why Europe is being pushed to the point of no return on an issue which should – with good will – be possible to solve. Notably, Angela Merkel’s most likely successor, CDU leader Annegret Kramp-Karrenbauer, has put out a tender to British negotiators to seek another way round the impasse. She says “If the UK now came to us and said ‘let’s spend five days negotiating non-stop on how to avoid the backstop’, I can’t imagine anyone in Europe saying ‘No’.
If the UK had new watertight proposals for the border, I don’t think anyone in the EU would say, ‘We don’t want to talk about it.” It is time for the government to respond this plea with positive and constructive suggestions of its own.
Policy: the government should insist on a time-limit or release clause to the backstop in negotiations with the EU and continue to insist upon the UK’s own right of interpretation of the more ambiguous aspects of the Withdrawal Agreement. This could mean two things: firming up the interpretative declaration that will accompany any future meaningful vote; or, in the event that the WA is seen to undermine aspects of the GFA or the Union, to insist on a right of unilateral exit in extremis). Without this, or without a workable mechanism for the UK to exit the backstop, there will be no agreement.
Seek to build political good will with the Irish government and the EU but stop punching below our weight.
There will be no breakthrough on the Irish border issue unless the government seeks to pursue these talks in a constructive manner. There is no appetite in the EU for deserting Ireland, which has genuine concerns about the future of the Good Friday Agreements. Efforts must be made to reach out directly to Dublin, rather than over the heads of the Irish government, and to seek to rebuild the spirit of Anglo-Irish cooperation that existed before the 2016 referendum.
However, the UK government needs to stop punching below its weight. It has a unique responsibility in Northern Ireland to protect and represent all communities, whereas the Irish government has increasingly acted in a way that primarily reflects nationalist concerns (and has aggravated the unionist community). In the event that no solution on the backstop is found, it is the UK that is likely to be forced to accept a significant part of the burden for security concerns that might emerge from the imposition of a hard border. Instead, both sides should seek to reignite the spirit of cooperation that saw the UK government give assistance to the Republic of Ireland government at the time of the financial crisis. Good trading relations, furthermore, are crucial to the Irish economy and good faith from Dublin towards London should be possible to restore.
Policy: The next Prime Minister should develop a coherent Union
Care should be taken in the use of language deployed to make
the case for the Union in order to appeal to those not already
persuaded of its value. However, the intellectual weakness of the
case against the Union should be consistently highlighted..
A solution on the Irish border which creates a special status for
Northern Ireland or customs border between it and the rest of
the United Kingdom in the Irish Sea should be resisted. See: The
State of the Union, by Professor Arthur Aughey, author of The Politics of
Englishness (2007); The British Question (2013); and The Conservative Party
and the Nation (2018).
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London