The Good Friday Agreement is in the frame for Theresa May’s challenge to the backstop

 

In their renegotiation campaign the UK government are offering belated assurances that the proposals they’re about to make to replace or qualify their backstop involve no weakening of their commitment to the Good Friday Agreement. The attention-grabbing part of foreign secretary Jeremy Hunt’s BBC interview was his hint – subsequently denied by No 10 – that withdrawal might have to be delayed to after 29 March.  While he declined  to give details, the “ alternative arrangements include: a “trusted trader” scheme to avoid physical checks on goods flowing through the border; “mutual recognition” of rules with the EU; and “technological” solutions ( already dismissed by the EU as “ non existent).”

 

Hunt offered elaborate assurances that these “arrangements”  would in no way mark a retreat from the GFA commitment. Extracts from Guardian Live

The first thing we have to do is demonstrate that our commitment to the Belfast agreement, the Good Friday agreement, is absolute. And we will do that. We have to show the EU, and show Ireland, that our commitment to the Belfast, Good Friday agreement, is absolutely unconditional. In fact, it is quite distressing for people like me and you, who grew up in the 1980s with bombs going off in Harrods or in Hyde Park and all over the country – any suggestion that we would ever waver in our support for the peace process, which was the greatest achievement of both John Major and Tony Blair, is absolute nonsense.

Secondly, we have to show that any solution that changes the backstop won’t lead to us trying to access the single market by the back door. And we recognise that the way that we access the single market, because we are not going to be embracing free movement, will change.

If we can overcome those two issues, which I think we can, then I think we will be able to have substantive discussions.

But this is not going to happen in the next few days. We have to put these proposals together, we have to work them up, we have to go through them in detail with our partners in the EU.

Hunt refused to back what Greg Clark, the business secretary told ITV’s Peston programme last night about technical solutions to the Irish border problem being unavailable. The UK government is calling for “alternative arrangements” to the backstop, and one option would using new technology to avoid the need for physical controls at the border. But Clark told Peston last night that he did not think these solutions were available. He said:

I’ve visited the border between Norway and Sweden, one country outside the EU, one country inside, they do have physical checks there. So I myself don’t see [a technological solution] being currently available but I don’t want to pour cold water on an attempt by people who are on different sides of the argument to come together to try to find a way forward.

When Hunt was asked if he agreed, he refused to endorse what Clark said. Instead he said:

[Clark] has got a view, and lots of people have got a view

At odds with Hunt’s placatory line, the right wing think tank Policy Exchange is recommending a more aggressive approach from the UK government. A new paper follows up to Paul Bew’s analysis of the backstop, claiming that it turns the GFA “on its head.” Policy Exchange returns to the charge that the backstop breaches the principle of consent, particularly as it applies to unionists. Furthermore, it undermines the right of the UK to leave.

The title of the note Strengthening the UK’s position on the Backstop by Professor Guglielmo Verdirame professor of International Law at King’s College London and Richard Ekins an associate professor in the faculty of Law at Oxford, shows where they’re coming from. This strand of thinking featured in the Malthouse compromise that   influences the renegotiation terms, even though the tone would presumably be different.

 With brinkmanship, and some cheek, Ireland has appropriated the Belfast Agreement and tirelessly deployed it in the withdrawal negotiations to its advantage. Why the UK did not object is a mystery. The UK should have insisted from the outset that the difficulties Brexit poses for Northern Ireland had to be dealt with by way of agreement between the UK and Ireland. British-Irish bilateralism is at the heart of the peaceful settlement of the conflict in Northern Ireland. Various institutions created by the Belfast Agreement constitute an ongoing framework for such bilateral action. Doubtless the absence of a functioning devolved administration in Northern Ireland since the 2017 elections has complicated matters. But this does not excuse the Irish Government’s decision to transform the Northern Ireland question into a UK-EU question. Ireland was of course trying to gain leverage in this way. This may have been a shrewd political calculation – it may yet misfire – but a service to the Belfast Agreement it was not.

Had the Belfast Agreement really informed the Brexit policies of the Irish and British Governments, the UK and Ireland would have been united in explaining to other European countries that their obligations under the Agreement required.

As noted by Lord Bew, there is thus a real risk that imposing the backstop will “turn the Good Friday Agreement on its head”. This is a risk implicitly acknowledged, but not entirely resolved, in the Exchange of Letters of 14 January 2019 between our Prime Minister, and the Presidents of the European Commission and the European Council. In that Exchange, the UK and the EU confirmed their shared understanding that the Withdrawal Agreement and the protocol setting out the backstop “do not affect or supersede the provisions of the Good Friday or Belfast Agreement of 10 April 1998 in any way whatsoever”.

As the EU Letter did not expressly refer to the principle of consent in the Letter, the Policy Exchange authors believe it means the the UK and the EU may not share a common understanding of the relationship between the Belfast Agreement and the backstop.

For me, they fail to demonstrate that this is more than a distinction without a difference.   The point is well made though that the GFA is the inevitable machinery for making Brexit function as part of the final settlement. However I can’t imagine  any solution radically different from the NI-specific backstop which in turn strengthens the case  for close customs and regulatory  alignment  between the  whole UK  and the EU. But that’s another story. The authors conclude…

The UK continues to be too timid about making clear its understanding of that relationship the UK should insist, unilaterally if need be, on its future right to suspend or terminate the backstop if faced with a material  breach by the EU of its obligations..

The EU cannot insist that a necessary condition for any future agreement is that the UK would have no right of unilateral withdrawal from that agreement, or that the exercise of such a right would always be subject to the backstop or some future version of it. In other words, the EU cannot seek to extend the backstop forever in all but name.

Whatever shape or form the future UK-EU relationship takes, it will have to include a right of unilateral withdrawal, and that right of unilateral withdrawal cannot be subject to any kind of backstop. EU membership includes such a right; so too does membership of the EEA and Canada-style free-trade agreements. It would be quite wrong for the UK to find itself less free to exit a future agreement than it is to exit EU membership itself. Further and finally, the UK would find itself in a hopelessly weak position in the final deal negotiations if it is stuck between the rock of the backstop and the hard place of a long-term deal from which it is impossible to exit.

 

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