Squaring the backstop circle

It is just under eight weeks until Brexit, and a deal still has not been done – or rather it has been done and then swiftly undone. Eight weeks is surely not enough to pass both the Withdrawal Agreement itself (scheduled for 14th February) and the subsequent, still top secret, six ton elephant that is the Withdrawal Agreement Implementation Bill (see Paul Daly’s Twitter thread). If we are to avoid No Deal, extra time is now inevitable.

Complaints that the UK has resiled on its commitments are somewhat overblown. In most democracies, a deal is not a deal until it has been ratified, and the UK Parliament reserves the right to overrule the executive. The real problem is that, nearly three years after the referendum, Parliament still has no idea what price it is willing to pay for the thing that it never really wanted. The furore over the backstop is merely a symptom of this contradiction.

The fear that is driving rejection of the backstop is that the EU will trap the UK indefinitely in an subservient relationship. The “solutions” proposed by the UK government – unilateral exit or a time limit – are effectively the same as no backstop at all. But what if there were a way to reword the conditions for exiting the backstop in a way that addresses UK fears of being trapped without compromising the substance? What if it could be recast using a formula respectful of UK sovereignty?

Remember, it is not the conditions to end the backstop that are the problem. Everyone talks confidently about the bright new relationship that will render the backstop unnecessary, even if they disagree fundamentally about what it would look like. No, it is the fact that the EU would be the arbiter of those conditions that Brexiters find unthinkable. They demand that Westminster be the sole arbiter instead. But that is unacceptable to the EU because of their fears that Westminster will try to pass off a Heath Robinson contraption (MaxFac!) that renders the EU’s trading borders indefensible – indeed, many suspect that to be the entire point of Brexit.

So can we find a mutually acceptable arbiter? One who could be trusted to defend the backstop to the hilt but which wouldn’t offend the UK’s sovereignty? And the answer is yes.

The backstop arbiter should be the Northern Ireland Assembly.

This can be done without reopening the Withdrawal agreement. There just needs to be a binding commitment by the EU stating that it will respect the position of the NI Assembly with regard to ending the backstop, provided that cross-community assent has been demonstrated in the Assembly.

Since the entire point of the backstop is to protect peace in NI, it makes sense that NI should have the final say. It softens the sting by removing the EU’s veto over ending the backstop, but replaces it with an effective veto by the nationalist community in NI. This can be sold as respecting the sovereign right of the UK to exit the backstop, but keeping the same level of protection by other means. (Sammy McNally came to a similar conclusion)

This inverts the earlier proposal by the UK that the Assembly should have the final say on whether to enter the backstop arrangements, but that proposal failed because it did not provide an automatic backstop, and was therefore useless as an insurance policy. Giving the Assembly the final say on when to exit the backstop instead reverses the burden of action, and requiring cross-community support ensures that it will not be done lightly.

Karl Whelan last week proposed a similar mechanism, but his differs in that a referendum would be called in NI, rather than an Assembly vote. This has the advantage that the Assembly does not need to be sitting, but raises the danger that it becomes a proxy vote for a border poll, like everything else in NI politics, and has no provision for cross-community assent.

But more interestingly, Whelan also proposed that the UK be allowed to exit the GB-specific parts of the backstop at will. These were insisted on by Theresa May (on the orders of the DUP) and were initially resisted by the EU. What harm then in confirming that the EU would be only too glad to get rid of them?

We can now see the shape forming of a concession-that-isn’t-really-a-concession from the EU that would respond constructively to the Brady amendment, while still protecting Ireland’s position. The question is though, would any such response be politically wise? Some Brexiters are making noises that even though they voted for Brady, which effectively declared the backstop to be the only major stumbling block, they have other issues with the withdrawal agreement and may still reject it. This means that any concession granted to May on the backstop may simply be banked by the Brexiters, only to be followed by further demands.

On the other hand, continuing to engage (cautiously) in good faith would reinforce the EU’s moral high ground in the eyes of Remainers and the outside world, which will be vital in the (hopefully not too distant) future when the UK tires of cakeism and elects a more constructive parliamentary majority.

(Edit: corrected wording of ratification requirements)

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