The shape of the final deal actually looks promising- if only we can get over the hump of the backstop. London now needs Dublin’s help to get there

 “Cosmetic and meaningless.”

On behalf of the DUP, Nigel Dodds’ rejection of the government’s latest bunch of concessions and clarifications is entirely predictable. The legal text containing the backstop of the Ireland/ Northern Ireland Protocol has indeed not been changed as everybody knew it wouldn’t be and won’t be.  Many will shrug and say that’s that. But it’s nothing of the sort.

If there’s to be any middle way between No Deal and No Brexit, it’s hard to see how any radically different British-Irish/EU, north-south relationship is conceivable.

If that’s the case the DUP are unlikely to remain the bellwether for Conservative opinion for much longer.

According to the hugely controversial new Grieve amendment passed this afternoon by a rowdy Commons, Mrs May must table a fresh Commons motion promising a Plan B in within three days of the Big Vote next Tuesday, assuming she loses it  – in other words, by Friday week.

At that point, the government hope for a statement from the EU setting the end of the transition period of December 2021 for the completion of the final long term deal. This they hope would mean the backstop would not need to be implemented and satisfy enough MPs for the May deal to squeak through.  However if the Commons demand an extension of  Article 50, the EU will only agree if the UK is serious about concluding a final deal that protects EU including Irish interests- and that means no No Deal.  If a further extension of time is needed, the backstop would be  triggered. So it stays in place, for insurance.

It may seem unfair that the EU’s assurances are couched in legal terms while the UK’s are political expressions of intentions and aspirations. But that only reflects  the uneven balance of power between the two sides , and all the more so as the UK cannot make up its mind about what course to follow.

In an effort to boost the  withdrawal agreement’s chances, the government published the paper of fresh reassurances that Nigel Dodds dismissed as meaningless.  Whatever they are for the DUP and their demand for legal certainty, they’re by no means meaningless, especially now that it looks all but inevitable that Article 50 must be extended to knock them into shape.

The main forging instrument they have in mind is no less than our old friends the institutions of Good Friday Agreement. Ironically the British government which is in deep huff with the Irish over Brexit is now pinning much faith in the British-Irish relationship to make Brexit work.  I see no reason why Dublin shouldn’t  leap at the chance.  All the more so, as the role the government is casting for the Assembly is bound to be strictly hypothetical.

As we go through the UK’s government’s paper, it’s clear its greatest practical deficiency lies the state of the Assembly. For one thing it isn’t functioning; for another even if or when it resumes could Executive ministers agree on an arrangement which will have basically been imposed on the North? The ideal template for inter-party cooperation would no doubt be the joint FM/DFM, letter to the prime minister of August 2016, weeks after the referendum. But it will take tremendous efforts from the two governments – so far conspicuously lacking – to get back even to that position.

The pattern of challenges, concessions and opportunities offered by the government to Dublin and the  Stormont parties is  considerable. The government would..

  • Seek the agreement of the Northern Ireland Assembly if the UK Government were ever to consider agreeing to add new areas of law applying specifically to Northern Ireland to the Protocol;

The UK government are selling  this as giving  the Stormont Assembly a ‘lock’ on accepting any new laws/directives from the EU when the backstop comes into force  It is less than a veto but might be hard to override.

  • Set out a commitment to a role for the Northern Ireland Executive through the UK’s presence on the Joint Committee, Specialised Committee on the Northern Ireland Protocol and the Joint Consultative Working Group established by the Withdrawal Agreement where Northern Ireland-specific issues are to be discussed;

  • Outline measures to guarantee the integral place of Northern Ireland in the UK economy, guaranteeing the same unfettered access for Northern Ireland businesses to the rest of the UK;

  • Ensure there would be no divergence in practice between the rules in Great Britain and NI covered by the Protocol in any scenario in which the backstop took effect;

  • Work with a restored Northern Ireland Executive to deliver on the enhanced role for Stormont to support the Northern Ireland economy the backstop provides – with Government support to facilitate the Executive using its new powers to drive growth across Northern Ireland; and

  • Ensure that the voice of a restored Northern Ireland Executive, along with the other devolved administrations, is at the heart of our work in negotiations on our future relationship.

  • It is also important to note that Article 13 does not require any application of EU law in Northern Ireland. It is therefore exempt from the specific EU supervision and enforcement provisions set out for some elements of the Protocol. Cooperation will remain a matter for the two sovereign jurisdictions on the island of Ireland to decide in accordance with their respective legal regimes.

Peter Foster of the Daily Telegraph concludes that the government’s paper…

protects Northern Ireland against any Irish attempt to use the backstop to capture the N-S process and bully the UK into accepting alignment to maintain the all-Ireland economy. So let’s say UK diverges on, say transport rules, or procurement rules, and the Irish lobby the Joint Committee that the British are not honouring the backstop. They cannot circumvent the existing North-South process. The NI Executive gets seat table, and will be able to object to Dublin’s stance.

Furthermore to reinforce their assurances the government, have accepted the amendment of Tory backbencher Hugo Swire.

 

  • Parliament would only be backing the withdrawal agreement subject to “the government obtaining further assurance from the European Union that the Northern Ireland backstop would only be a temporary arrangement and that, in the event that it comes into force, both parties intend to agree a future relationship or alternative arrangements consistent with the political declaration one year after the end of the implementation period.”
  • Parliament would have to approve any decision to implement the backstop.
  • If the backstop did get implemented, the government would have “a duty to have an agreed future relationship or alternative arrangements one year after the Northern Ireland backstop coming into force, consistent with the framework for the future relationship … so that the Northern Ireland backstop ceases to apply.”
  • If the backstop were deemed necessary, MPs would get to decide whether to implement it, or whether to extend the transition as an alternative.
  • The government would have to report in March 2020 on what was being done to ensure the backstop was not needed.
  • The government would have to consult the devolved administrations, in particular the Northern Ireland executive and assembly.

While by itself this  amendment does not affect the withdrawal date of 29 March, it adds to a battery of assurances that sets  a course for a final deal that  would represent success for  Northern Ireland and indeed  both islands as a whole – if only we can get over the hump of the backstop.

What is needed now is a show of faith all round, and less reliance on so-called legal certainty.