What matters next has changed. Summit signing on Sunday apart, the next real stage of Brexit is not about Brussels but how MPs will react to what’s in front of them. The political declaration published today was full of warm words for a deep and meaningful relationship but it is clear that British options for striking out independently are constrained by the legal terms of the withdrawal agreement featuring the backstop. Try and she might to hint at a different breakout in the final deal based on new technology for border checks, Theresa May failed to convince.
… the reality is that this is not the withdrawal agreement, and the withdrawal agreement will make it very clear that should we, even under these terms, struggle with a negotiation for a free trade arrangement and not complete that process, we will fall into the Northern Ireland backstop as it exists at the moment. That means that we will be bound by those restrictions that force Northern Ireland into a separate arrangement and us into the customs union. I simply say to my right hon. Friend therefore that I hope that she will now consider that none of this is at all workable unless we get the withdrawal agreement amended so that any arrangements we make strip out that backstop and leave us with that positive open border that we talked about..
The premise of my right hon. Friend’s question is that if the future relationship is not in place by 1 January 2021, and if in some sense there needs to be that interim arrangement, we would then automatically go into the backstop. That is not the case. The withdrawal agreement makes it clear that there is the alternative of the extension of the implementation period, but it also refers to these alternative arrangements, and, as I said in my statement, I am grateful to my right hon. Friend for his proposals in relation to that matter and we are working on them. So it is simply not the case that we automatically fall into the backstop described in the withdrawal agreement. On the question of no hard border, we have a commitment to no hard border, but I believe it is important that we also try to work to ensure that businesses and people in Northern Ireland are able to carry on their business and their daily life much as they do today. This is about no hard border but it is also about our overall commitment to the people of Northern Ireland
Owen Paterson former SoS
As long as the backstop exists in a legally binding document, there is a danger that, should talks fail, the backstop becomes accepted and we have the horror of being in the customs union, the horror of Northern Ireland being split off under a different regime. As I saw in Washington this week, if we cannot control our tariffs and our regulatory regime, we cannot do free trade deals with other countries. At this late stage, will she consider withdrawing the backstop from the legally binding draft document and replacing it with the draft trade facilitation chapter and border protocol that we gave her earlier in the week, and making that legally binding…
And just to rub it in, from the leading Remainer and former Attorney General Dominic Grieve:
The backstop… is a constitutional anomaly of the first order because it makes the EU the guarantor of a bilateral treaty between ourselves and Ireland on which the people have never been consulted.
ITV News’ s Robert Peston judged it a humiliating moment for May in the Commons when Duncan Smith and Paterson said thanks but no thanks. They will never support her deal for as long as the backstop is in the Withdrawal Agreement.
The DUP will not be able to support a Brexit deal that includes a legally binding backstop that they see as potentially putting up a barrier between NI and GB, when the intention in the political declaration to avoid the backstop has no legal force… as the DUP’s Nigel Dodds, put in PMQS yesterday:
In the December joint report agreed between the European Union and the United Kingdom, it was agreed that Northern Ireland would have the final say on whether it diverged from the UK single market and was subjected to single market European rules with no say. Why has the Prime Minister deleted all reference to that in the withdrawal agreement? Did she push the delete button?
There is of course no Northern Ireland Assembly at the moment. And if there was, could its members agree?
Of particular interest to NI watchers, Paul Goodman, editor of Conservative Home passes a verdict on the current outlines of Brexit, combining the withdrawal agreement with the declaration.
“The UK has scored some tactical wins in these negotiations, some of them with striking implications, but the EU has won the strategic victory. From the start, it has offered a choice: between a kind of Norway-plus-customs union option, or a sort of Canada-minus-Northern Ireland option.
In sum, the Declaration reflects this offer. Considered as a whole, the deal will have the effect, if Parliament approves it, of turning the Conservative Party into a kind of pushmepullyou, as James Forsyth suggests today.
In those few days, cabinet ministers privately debated what to do. One — who may well succeed Theresa May — was clear that he’d choose Great Britain having the economic benefits of Brexit even if it meant Northern Ireland being given special status.
More Tories think like this than you might imagine. The Margaret Thatcher view that Northern Ireland is as British as Finchley is no longer as dominant as it once was. But a willingness to let Northern Ireland’s status evolve in this manner is still, for the moment, a minority view. There’s also now a group of Tories who are Unionists first and Conservatives second: the party’s Scottish contingent. This used to be a one-man band, but not anymore. There are now 13 Scottish Tory MPs, and the Scottish party makes up 15 per cent of the overall party membership: nowadays, Scots are almost twice as likely as the English to be Tory members.
This powerful bloc would resist anything they thought would bolster the case for either a second Scottish independence referendum or the eventual breakup of the United Kingdom. But the EU has made it clear that the Irish border can only be kept open if Northern Ireland remains in alignment with a host of EU rules. So the Tory party will be left having to constantly choose between the UK taking back control of its own rules and regulations, or loosening links with Northern Ireland. This will fast become one of the new faultlines in Tory politics, and it has the potential to split the party.
All the more reason for the DUP not to dump Theresa May.
On the one hand, its Eurosceptic instincts will pull it in the direction of the Canadian-type option; on the other, its Unionist beliefs will push it towards the Norwegian-shaped one – since most Tories will not want to widen the customs and regulatory gap which the Agreement opens up between Great Britain and Northern Ireland.
True, there is a minority strand in Conservative thinking that would let Northern Ireland go its own way. But it is not possible simply to hive the province off, even were this desirable (which it isn’t): the preservation of Northern Ireland in the EU’s customs and regulatory arrangements, without the province’s elected representatives having a future say in them, would have dangerous knock-on effects on the British Isles as whole. Furthermore, the implications for Scotland are considerable – and baleful.
British statecraft has kept the Union together for over two hundred years. No Tory MP should vote for a deal that endangers it, as this one does. And while the wins for either side the EU in the Agreement are bankable, those in this Declaration are not. Take fishing as an example. On the one hand, the Declaration envisages Britain as an independent coastal state, in control of its own waters. On the other, it envisages a new fishing agreement with “access to water and coastal shares”.
As with immigration, this represents change in principle (though how much in practice is being disputed). But there is a difference: migration is essentially covered by the enforceable Agreement, not this unenforceable Declaration. It is otherwise with fishing. Similarly, the Declaration contains some warm words about finding “alternative arrangements” to the backstop. But, again, the backstop is set out in the Agreement; this nod to MaxFac is restricted to the Declaration.
We see little in the last to keep alive the Chequers dream of a separation between manufacturing and services. Nor does it envisage trade arrangements which end friction rather than minimise it. The implication is that the less friction in trade the UK wants, the more EU alignment and migration it must take: that’s the theology of the four freedoms at work. The deal as a whole separates these slightly, but the EU will resist them coming apart.
A staple of magicians’ stagecraft is misdirection. While his audience is gawping at one thing, the magician is swiftly doing another. So it may be with the Declaration. Even as politicians, analysts and journalists prod and poke at it, don’t rule out, during the run-up to this weekend’s summit, a sudden flourish on the Agreement – a dramatic concession on the backstop (say), whether substantial or meaningless, aimed at collapsing backbench resistance to the deal”.
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