Trimble’s attack on the backstop has come too late

With prospects of a return to Stormont hovering around degrees absolute, the temperature is rising among unionists about the meaning of the backstop. They believe – and they’re not alone – that there is no outcome other than no deal that will not activate the backstop and “make Northern Ireland a protectorate of the EU.” Mixed messages are emerging as EU leaders have to decide whether to convene a special ratification summit on 21 November. Meanwhile a more parochial row is raging on closer to home with David Trimble in the thick of it.

The former first minister of Northern Ireland, who won the Nobel prize for his role in the peace process, accused Leo Varadkar’s government of “riding roughshod” over the 1998 agreement.  It is clear to me that the Irish side in the Brexit negotiations is undermining the 1998 Good Friday Agreement, riding roughshod over its terms and violating its spirit. . There is a genuine risk that Northern Ireland will end up as part of an effective EU protectorate, without the say-so of the Northern Ireland Assembly. “This would be an appalling breach of the principle of consent, which runs through the (Good Friday) agreement.”

The pedants among you will have noticed that the consent principle applied specifically to Irish unity. At any rate Trimble might have anticipated something like this before he decided to support Leave and then  went on to join the club of  Brexiteers dismissing the very idea of a border problem. He penned these thoughts in a foreword to a report, “The Irish border and the principle of consent, “by Graham Gudgin director of the Policy Exchange think tank and a former Trimble adviser and Ray Bassett, an ex-DFA dissident. The report says:

Theresa May’s stance is more closely aligned to the original principles of the 1998 Good Friday Agreement than the Irish-EU side’s stance.
• Current Irish demands contravene the 1998 Good Friday Agreement.
• It is currently the EU position in talks that is now the greatest danger to the terms of the 1998 Good Friday Agreement, because of a fundamental misinterpretation of the principle of consent on which it rests – which holds that the future constitutional status of the people of Northern Ireland has to be decided by a majority of the people in Northern Ireland.
• The idea that a backstop might involve a few veterinary checks on ferries or at ports in Great Britain is palpably false. In the circumstances in which a backstop would operate, tariffs would need to be collected. These could be collected without border checks but the same is true for a land border.
• Future trade talks between the UK and EU should include an ‘Ireland chapter’, in which both sides genuinely try to ensure an invisible border and preserve existing cross-border cooperation.

One possible way out of the current impasse is for both sides to sign a declaration that future trade talks (scheduled for the next phase of Brexit negotiations) will include an ‘Ireland chapter’, in which both sides undertake to use their best efforts to ensure an invisible border and to preserve all existing measures of cross-border cooperation agreed under the auspices of the 1998 Good Friday Agreement, on the basis of the principle of consent.

Presumably this would be included in the political declaration on the framework for the final deal which would accompany the withdrawal agreement. But would it effectively neutralise the backstop?

Brexit secretary Dominic Raab is singing off a different hymn sheet, making the startling claim that an agreement on the Irish border was “not far off”. In a letter published yesterday, he said  he expected a Brexit deal to be finalised by November 21. He’ll be closely questioned about that when he visits the province today.

The problem of how to deal with the Irish border has been a sticking point in negotiations. “Despite our differences, we are not far from an agreement on this issue,” he wrote.

Leo Varadkar last week criticised Mr Raab for suggesting that an extension to the UK’s transition period could be an alternative to a backstop to prevent a hard Irish border. Mr Raab indicated that the UK would eventually have to choose between the two, in comments described by the taoiseach yesterday as “unusual”

The FT runs a more positive story under the headline, “EU floats compromise on Irish border backstop with London.”

In a concession to London, the EU would lay out the full terms of a “bare-bones” all-UK customs union in Britain’s exit agreement, avoiding the need to negotiate a second customs treaty after Brexit, according to several diplomats familiar with the plan. The stop-gap measure would remain in place until a permanent UK-EU trade agreement is agreed.

Under the backstop compromise, Northern Ireland would remain in a deep customs union with the bloc, applying the union’s full “customs code” and following single market regulations for goods and agri-food products. At the same time the UK would be in a more “bare-bones” customs arrangement with the EU, in which it would apply a common external tariff on imports from outside the union and rules of origin….
The new compromise would give Mrs May some legal certainty that Britain could not be forced to accept a customs border with Northern Ireland. A Northern Ireland-only customs union with the EU would still be needed in Britain’s withdrawal agreement as a final fail-safe measure — a so-called “backstop to the backstop” that London strongly opposes.

The difference between this proposal and what was rejected by Mrs May last month seems smaller than can be seen with the naked eye. And yet it may account for Dominic Raab’s optimism. Let’s hope we’re not in for another letdown.

Brian Walker

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