Unionist objections to the backstop are more than DUP paranoia and need to be addressed

Cabinet approval for Theresa May’s Brexit withdrawal proposals, is again delayed as demands mount from inside the cabinet and without to have sight of the Attorney General’s legal opinion in full. (I’m not sure why is meant by “legal.” What they’re really looking for is  a navigation chart around the treacherous rocks).   The idea of ministers trooping in like junior officers to a “ secret” room in the Cabinet Office like the general’s study  to view  a summary of the 95% that was ready a fortnight ago only highlights the glaring absence  of the missing 5%  that is the plan for the  backstop.  It also reveals the inability of ministers to influence the content, short of the nuclear option of throwing it – or Theresa May – out. Small wonder that Leo Varadkar sees the prospect of agreement by the end of the month receding with each passing day. The intractability of the backstop remains.

Dublin opinion is near unanimous in favour of holding out, save for a word of caution from the economist and former eurocrat Dan O’Brien writing in his column in the Sunday Independent. While he endorses the backstop, he questions those aspects of the prevailing  wisdom that discounts unionist opposition.

 The position of the Irish Government and nationalist parties is that Brexit will undermine the two decades old agreement. This view is frequently made. It is correct.

But there is also a case to be made that carving Northern Ireland out of the UK is a breach of the same agreement. Just last week, David Trimble, one of its architects, wrote “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”. His comments got no coverage in the Republic’s media. Trimble’s view is also the view of the UUP, the party he once led. Again, that position gets no airing.

The reasonable views of this island’s minority on such an important matter would be prominent in a truly pluralistic media. That they don’t says a great deal.

To repeat: not including reasonable people from the other tribe who have reasonable views is a serious act of exclusion.

If the North were to stay in the EU’s single market, it would have implications that can very reasonably be viewed as constitutional. Unionists are not wrong to view it that way. Those who dismiss this view or claim its advocates are making up non-existent problems are wrong.

Consider laws governing the functioning of markets, which account for a considerable proportion of all laws on any country’s statute book.

Currently, citizens of the North have as much say as anyone else in the making of EU laws. If the backstop were to come into force, they would be subject to EU laws but, because they would be outside the EU, they would not have an equal voice in the making of new ones. British citizens in Britain would be in a very different position.

The case can certainly be made that this is a price worth paying to maintain the status quo with regards the Border on this island. But it is not incorrect or unreasonable for unionists to oppose it on the basis that it changes their constitutional position in the UK.

There has been a lot of self-congratulation south of the Border about how we have become a society more respectful of minorities and more willing to respect how they view the world. Alas, we appear to have a long way to go before we afford the minority tradition on this island the same respect.

How can  the conscientious unionist objections be recognised?  So what can be done? The think tank Open Europe has just published Resetting the  Backstop  which probably comes close to the British position.

“Without clarity on what is agreed, the backstop is bound to return in the next round of negotiations, and could make it more difficult to reach agreement on the future relationship. This would be bad for Northern Ireland, since it is only in the context of the future relationship that the border issue can be resolved satisfactorily. Ultimately, the UK should not accept any backstop arrangement which it has no real option of leaving while keeping the constitutional status of the United Kingdom intact.”

 

It is impossible to completely avoid a potential WTO-terms Brexit, including for Northern Ireland, until a future UK-EU partnership is concluded and in force. The idea that a Northern Ireland-only backstop could be practicable or enforceable in the absence of a wider UK-EU deal is implausible.

A backstop-bridge would be:

A) Temporary: this does not necessarily mean time-limited but the UK must be able to exit such an arrangement if the UK and EU are unable to reach agreement on the future relationship. This should apply to all backstop arrangements, including any that would be Northern Ireland specific. The EU itself has argued that Article 50 cannot serve as the legal basis for a permanent relationship and this should also apply for Northern Ireland. The arrangements could be extendable by joint agreement or broken with a period of notice by either party. Otherwise the UK would be subject to treaty arrangements that prevented it from leaving the EU without surrendering some sovereignty over Northern Ireland.

B) UK-wide: this could be achieved in different ways. Ideally, this would be achieved via early adoption of the trade aspects of the UK’s proposal for the future partnership i.e. UK wide alignment with EU rules on goods and a new customs arrangement as proposed at Chequers, or through the possibility of a “maximum facilitation” strategy of ensuring that the border is as frictionless as possible. However, the EU has so far suggested this will not be possible in the given time frame or at all. Therefore, the alternative options are:

1) Extension of the proposed transition period;

2) A combination of a UK-wide customs union and a regulatory backstop for Northern Ireland. This formulation would defer to the EU’s insistence that a regulatory backstop could not be applied UK-wide, as this would risk prefiguring the future partnership in a way that divided the four freedoms of the single market. Meanwhile, the UK could limit the emergence of regulatory barriers between Northern Ireland and Great Britain by voluntarily aligning UK regulation with that of the EU/Northern Ireland. Or, in other words, by not diverging from EU rules.

Despite extending the UK’s contributions to the EU and prolonging a period of limbo, such a temporary backstop-bridge would be worthwhile to the UK to retain the option of successfully concluding a good UK-EU deal, which would need to settle the issue of the Irish border in a mutually acceptable manner. However, in the short-term, there is no way of avoiding the possibility of a WTO-terms Brexit entirely, since the prospect could return even after the UK enters the transition period at the end of March 2019.  

Inevitably, the border question will return as a major issue in the next round of the negotiations on the future relationship. A compromise on the backstop is needed, and elements of the existing withdrawal proposals are welcome, as are the commitments on the Common Travel Area and the statements of support for the Belfast Agreement. However, there is a risk that if the UK signs up to a Withdrawal Agreement containing a Northern Ireland-only backstop, or a permanent “backstop to the backstop”, the UK will be at a disadvantage as it negotiates its future relationship because the EU could yet again present its interpretation of the backstop as a hurdle to any deal. This could be destabilising for Northern Ireland and the future negotiations. There is an onus on the Government and MPs to make sure they are clear about the legal and political consequences of the backstop at this stage”.

You can see why full withdrawal if it happens, will not be achieved until well into the next decade.  But that particular  clock can only be set when the withdrawal clock finally stops.    

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