Face it: A backstop is a necessary condition to avoid catastrophe. May’s conditions do not threaten the constitutional integrity of the UK – for now

The Times headline is unqualified: “No- deal will “include new border in the Irish Sea.”  So we know what side they’re on.

Theresa May’s adoption of  a “temporary” backstop whose terms and conditions she insists would not play a part in a permanent deal with the EU was inevitable.   But here’s the bigger problem. To be temporary, it must mean that  the whole UK will remain  in long term close alignment with the EU.  A looser permanent relationship like a Canada plus free trade deal might activate the backstop to protect the open border. And that would mean permanent divergence between GB and NI. Whether you’d call that constitutional or not is a matter of taste. The alternative would be to agree a  period of transition long enough to develop the technology to make checks, not at the border but at ports, warehouses and on the road which both the EU and Brexiteers think is theoretically feasible, but not technically available yet.  That’s what at stake.

For reaching a withdrawal agreement in the coming weeks, acceptance of  the backstop significantly improves its prospects with the EU. But it will  make the calculations for ratification by the Commons all the tighter, if it’s opposed by the DUP.

It may detach enough English Brexiteers who up to now have supported the DUP’s position. Indeed this may be Mrs May’s calculation as the necessary sacrifice to avoid No Deal in March. But it is a gamble. The backstop would still be activated if the EU reject May’s all-UK  customs alignment. Whatever she says in the letter, how could she prevent it, short of a crash-out no deal?

With precious little room for manoeuvre, Mrs May has probably gone as far as she can to reassure unionists that her backstop proposal will not  sunder the Union constitutionally nor impede trade between NI and GB.  But this is the sort of conditionality that the DUP hate. In the next stage of the negotiations for the permanent deal, they would have to trust the British government; whereas instinctively they trust only legally binding guarantees, preferably no goes.

But  even with the backstop accepted, Mrs May’s  calculation about detaching enough Brexiteers is far from guaranteed, if  ERG member and  former minister Steve Baker  is to be believed.   

In the end, it’s not really about the backstop. The tearing frustration is that the UK has been negotiating with itself. Many of us have long believed that the row over the backstop is at least partly confected in order to have an orchestrated breakthrough”

In her letter to Arlene Foster and Nigel Dodds announcing her decision, Theresa May declares: “We should be clear that the backstop would only ever be temporary.” But she admits that there will be some divergence in regulations between NI and GB, on the integrated electricity market governed by EU rules and animal checks which are regularly made under the same UK law as applies in GB.   Here are the trickiest bits.

The government has consistently said that the unique circumstances of NI could require specific alignment solutions in some scenarios, provided they are consistent with the constitutional and economic integrity of the UK.

Here she cites the unique circumstances of the single electricity market governed by single market regulations, not a bilateral arrangement.

Seeking another arrangement would to undermine security of power supply and disadvantage consumers and businesses across Northern Ireland. That is not a choice any government could or should make.

All-island human and animal checks are regularly made on the basis of UK law and can apply within the UK as well. ( So no constitutional breach there).

On customs alignment:

“We must preserve NI’s place in the UK customs territory, and I would never accept a time limit proposal which threatened that.”

First reaction from Mrs Foster is unfavourable. She rejects the prime minister’s assurances:

“The prime minister’s letter raises alarm bells for those who value the integrity of our precious union and for those who want a proper Brexit for the whole of the UK. It appears the prime minister is wedded to the idea of a border down the Irish Sea with Northern Ireland in the EU single market regulatory regime.”

No doubt the airwaves and Twitter will be humming all day, speculating if the DUP will roll back from their initial rejection of the proposal and voting against it on the floor of the House of Commons, assuming it survives in the withdrawal agreement being put to cabinet next week.

As it appears the letter was sent to them four days ago. the DUP leaders were apparently sitting on it for some time.  This suggests either they were uncertain about how to react, as flat rejection would involve the fateful step of terminating their pact with the Conservatives, or had made attempts to have it watered down which the government rejected. Sammy Wilson told Radio 4 this morning that Downing St must have leaked it, as it wasn’t the DUP. If so, it looks like a move to signal the end of the road of concessions to the DUP and expose them to pressure to avoid the catastrophe of a crash-out No Deal.  .

Later

What I didn’t realise it at first was that May’s letter  was a reply to one from Foster and Dodds on 1st November

2/2 1st November 2018 letter from Arlene Foster @DUPleader & Nigel @NigelDoddsDUP to the Prime Minister. “It is vital for both NI & the entire UK that if agreement is reached, it must be clear and must not risk opening divergence within the UK for generations to come.

Be careful what you wish for!  Sammy Wilson has amplified their position with  pleas to reconsider, which on the face of it, seem unlikely to be heeded even under pressure.

Speaking to Radio Ulster’s Good Morning Ulster programme, Sammy Wilson said “the insurance policy argument” was a “false one” and warned his party would vote down the deal proposed in the letter if it was put before the House of Commons.

Mr Wilson said his party was “hoping to turn the Prime Minister around”.

“We want to stick to the confidence-and-supply arrangement, but you know there are two sides to that. The government has obligations under the confidence-and-supply arrangement and as have we,” he said.

“We are seeing the shape of the agreement she is talking about in this letter. We don’t like the shape of it. We are warning the Prime Minister again it breaches the promises she made, time and time again in the House of Commons and when she visited Northern Ireland.

“We are asking her to reconsider this. We are asking members of her cabinet to reconsider this.”

Extracts from Theresa May’s  letter

Dear Arlene and Nigel,

Thank you for your letter of November 1 on the United Kingdom’s negotiations with the European Union. Your letter has raised a series of issues about the nature of the backstop.

On never wanting to use the backstop
The backstop is not, and will never be, our preferred outcome. As I said in my statement to parliament last month, it is an insurance policy that no-one in the UK or the EU wants or expects to use. Our overriding priority is to deliver a future partnership between the EU and the whole of the UK which delivers in full on the commitments we have made… The future relationship will apply across the United Kingdom as a whole.

On the permanence of the backstop
Your letter refers to the backstop as being a permanent arrangement enshrined in international law. We should be clear that the backstop would only ever be temporary. This is inherent in the Article 50 legal base on which the withdrawal agreement will be founded, which cannot aim to establish a permanent relationship. This position will need to be reflected in any backstop legal text we agree with the European Union. Furthermore I have been very clear that the government I lead would not accept being kept in a backstop arrangement indefinitely

On the backstop as a basis for the eventual deal
I fully understood your concerns that the backstop could become a legal mechanism which could be resurrected once we have our future relationship in place. We will ensure that we address them. When our future deal – which of course will avoid a hard border – comes into force the backstop must be legally superseded by that future relationship.

On what the backstop applies to
[The need to avoid a hard border] is why we put forward our proposal in June for a temporary UK-EU joint customs territory in the limited circumstances in which the backstop might apply. As you know, the EU has proposed that, although this option could be negotiated in the future, they want to maintain a Northern Ireland only “backstop to the backstop” in case the future negotiations are unsuccessful. I am clear that I could not accept there being any circumstances or conditions in which that ‘backstop to the backstop’, which would break up the UK customs territory, could come in to force. That is why it is critical that the provision for a UK-EU joint customs territory is legally binding in the Withdrawal Agreement itself, so that no ‘backstop to a backstop’ is required.

On time-limiting the backstop
Your letter also raised the issue of a time limit. We should be clear that a time limit on a UK-wide customs arrangement that simply resulted in a NI only “backstop to the backstop” coming into force would be totally unacceptable. We must preserve NI’s place in the UK customs territory, and I would never accept a time limit proposal which threatened that.

What happens to regulations in the backstop
The government has consistently said that the unique circumstances of NI could require specific alignment solutions in some scenarios, provided they are consistent with the constitutional and economic integrity of the UK.

Single electricity market
Your letter mentions, for example, the single electricity market, which is legally underpinned not by a bilateral arrangement but by single market regulations relating to the EU internal energy market. If we were to reject any targeted alignment of rules needed to maintain this arrangement, which is different to the market in the rest of the UK, then we would be making a choice to undermine security of power supply and disadvantage consumers and businesses across Northern Ireland. That is not a choice any government could or should make.

Human and animal matter checks
Similarly, the all-island single epidemiological unit has for a long time protected animal and human health in NI and Ireland and there are statutory provisions for unique licensing, checks and control powers within the UK in this area.

Greater alignment?
Nonetheless it will clearly be essential that the scope of any alignment in a backstop scenario is carefully circumscribed to what is ‘strictly necessary’ to avoid any hard border. It will also be critical that any arrangements take account of the very important trade between GB and NI. Whilst we recognise there are already more than 30 existing types of ‘regulatory check’ between GB and NI at present, covering a range of products, it is nonetheless essential that arrangements operate sufficient flexibility in any scenario to preserve the UK’s internal market.

GB will continue to copy NI relations in the backstop
We are also reflecting on how to give expression to the pragmatic and political reality that, given that any backstop would apply only in time limited circumstances and for a temporary period with a view to that future UK-wide arrangement, we would not expect regulations to diverge between Great Britain and Northern Ireland during a backstop scenario.

In conclusion
Finally I welcome the commitment of you and your party as a whole to a negotiated outcome for an orderly withdrawal. I do not accept that a no deal outcome should be our preferred scenario, or that it is the most likely outcome. These are important times for our Union, for our economy and for the people and businesses across the UK. It is essential that, at such an important time, we are guided by the national interest and upholding our precious Union for the long-term. We all owe it to future generations to make the right decisions in the national interest.

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