Time to stop making a fetish of the backstop and find a new formula via the GFA

Theresa May has shored up her own position at least for the moment and won a truce between the bitterly divided factions of her own party. This  was achieved  at the cost of sounding even  firmer over the current  irreconcilables of   “no border in the Irish Sea”, and  “no hard border between  Northern Ireland and Ireland”

The stupendous irony is that if the deadlock over the backstop continues, it brings No Deal before next March nearer and therefore the likelihood of the one outcome that nobody wants   – a hard border.

Surely the time has come for  a deadlock breaker. In that respect May has prescribed four tests:

  • There must be a firm commitment to the EU-UK temporary customs arrangement. This would be legally binding. This was enough for former Brexit minister Steve Baker to withdraw his amendment to the forthcoming NI Bill, which  would in theory give the Assembly a veto on implementing the proposed separate  EU customs arrangement for the province.
  • There should be an option to extend the implementation period as an alternative to the backstop.
  • The UK must be able to leave at will, not be locked into any arrangement ‘against our will’.
  • The government must ensure full access for all of NI businesses to Great Britain.

The Guardian’s interpretation – and the FT agrees –  is that

 May, might be driving at is the UK’s belief that the EU will relent on its opposition to a UK-wide, rather than a Northern Ireland-only, customs arrangement and that this is what she is aiming for in negotiations.

There was also a hint of the backstop to the backstop, or “bridge” between the withdrawal agreement and the future relationship document, with May promising “sufficient information” in the latter to address sensitivities in relation to the former.

When oh when will we see it?

For the Irish and the EU, the backstop has to be open-ended, to be a “weather proof” insurance policy that covers anything from a delay in the trade deal to a change of government and Brexit policy.

Her fourth step was perplexing and fuelled immediate speculation that this was a suggestion that May had accepted the EU’s proposal for limited regulatory checks on cargo, animals or food going from Britain to the island of Ireland. Sources insisted this was an “over-reading” of her statement.

Her proposal for a legally binding  joint UK- EU/ Irish  customs territory  as a substitute for the backstop received a immediate  rebuff from the Dublin government according to the Irish Times, although they are prepared to look at more time for the transition to try to solve the problem. The issue was one of trust, the ambassador to London said.

But could not trust be achieved differently, even at this late hour and so close to deadline?

A joint UK/EU (therefore mainly Irish)  customs authority on the island  could be appended  to the international treaty that is the GFA and complemented by entrenchment in the  withdrawal Acts. Originally a silent partner in 1997, the  EU could become a signatory to the relevant protocols. Some additional regulation would indeed be necessary to prevent Northern Ireland  providing a back door in both directions for unregulated goods and services, but in a way guaranteed not to impede trade between GB and  both parts of Ireland. The latter is surely as much to the advantage of the Republic as the North. The two parts  could be sequenced almost simultaneously and  confirmed  in the political declaration as the framework for the final deal. The authority of the GFA as the foundation document for the new Northern Ireland and the British-Irish relationship should surely be strong enough to create trust. It has been invoked often enough before in these negotiations.

The essence of the backstop goes to the heart of the Brexiteer objections to the EU – that of a supra- national authority dictating terms to a national government over part of its own territory  and should never been agreed to in the first place. The arguments that Northern Ireland  is a place apart and that the Irish border is uniquely the only land frontier with the EU might be recognised equally well by such a different arrangement..

It’s clear that whatever the confusions created by different readings of ambiguities  on either side , both London and Dublin (as Ireland and as one of EU 27) are desperate for a deal and the absence of a border.

Mrs May seems to have dug her heels in against the EU’s version of the backstop and claims that it’s the EU that’s showing flexibility. She has been wrong before and may be wrong this time.  If she is, the result could be a hard border in various places on the island. Lose. lose all round.



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