So confused has the debate over the ‘Backstop’ – the latest addition being a ‘Backstop to the Backstop’, where Ireland has an additional Backstop on top of a UK-wide customs Backstop if the UK-wide version is not sorted in time – that it is now vital for the success of the Brexit negotiations to get back to the core reasons for such a Backstop. We need to revisit why it was needed and whether events have moved on so much that there is no longer a case for such a device. The Cabinet after all must decide [TODAY Thursday 8.11.18].
This process now seems rather like peeling off layers of surplus paint that have been splashed on top of the original concept, to find the firm base metal underneath.
So to return to first principles: what is the Backstop, what is it actually for, and how do we amend or replace it with something that can lead to a breakthrough on a deal?
The Backstop is contained in the Joint Report made on 8th December 2017. Paragraph 49 basically demands the UK stays in the EU’s Common Union and Single Market if the deal is not delivered: ‘In the absence of agreed solutions, the UK will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.’
Paragraph 50 is about regulatory barriers: ‘… the UK will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate… In all circumstances, the UK will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the UK internal market.’
Why was such an invention necessary? Well time for that bare metal: because there is such a lack of trust, and the need for ‘legal guarantees’ and an ‘insurance mechanism’ and the Backstop are all to do with that lack of trust.
The Irish Government do not trust the British Government not to backpeddle on avoiding a hard border on the island of Ireland – meaning physical checkpoints, people in peaked caps, and checks on the border.
This despite the UK Government frequently stating that it will not institute a hard border under any circumstances. That means not even if there no trade deal between the UK and the EU and we all have to revert to applying tariffs on goods both ways under World Trade Organisation (WTO) rules, there still will be no hard border.
The EU does not trust the UK to maintain a customs border. Indeed, they are suing the UK for what they say are uncollected duties on Chinese goods for £3 billion. This is a disastrous starting point for the proposed ‘Customs Facilitation Agreement (CFA)’ in Chequers, where the UK becomes a customs collection ‘agent’ for the EU. Nor does the EU trust the UK to honour the legal nature of the agreement – they felt the deal made in December should not have been dismissed as not legally binding.
Unionists, most notably the DUP, don’t trust the British Government not to split Northern Ireland away from its market, and its regulations from the rest of the UK – bearing in mind four times as many exports go to GB than to the Republic of Ireland.
On the British side, our own Brexiteers do not trust the UK Government, never mind the EU, not to capitulate on a deal with the EU and to keep us trapped in the Customs Union forever, under pressure from UK ‘business’. To allow the EU and Irish government to use the backstop provision basically to veto any Brexit deal on the pretext that it does not satisfy a border deal or that the free trade agreement overruns creates a hostage to fortune that the British people would see as abject surrender. They want the backstop to go.
So we have an impasse on the backstop. We seem all to be impaled on a Backstop hook that we are unable to escape, with the clock ticking down and the prospect of a no deal staring at us ever closer in the rear view mirror.
So what could solve the problem? When I was Special Adviser to the Northern Ireland Secretary of State Patrick Mayhew during the start of the Peace Process in 1996 to 1997, I learnt much about the importance of language and creativity, especially in such a sensitive context as Northern Ireland with its linguistic minefields – even use of descriptors such as Derry or Londonderry. I also later suggested a means of decommissioning (putting ‘beyond use’) terrorist weapons by the former terrorist groups destroying their own weapons in front of independent witnesses, which later was adopted. Decommissioning was the hook the Peace Process became impaled on then.
What I suggest to get us off the Backstop hook is as follows:
1.) To replace the Backstop – those Paragraphs 49 and 50 – by evolving it into a legal protocol attached to the Withdrawal Agreement. A protocol is what was used to satisfy sovereignty demands for the Irish in the Lisbon Treaty, following the defeat in their first Lisbon Referendum. The three areas protected were military neutrality, tax sovereignty and social issues such as abortion rights. These items weren’t directly related to the Lisbon Treaty’s text itself but were very important to the sovereign concerns of the Irish people and were expressly recognised, and protected, in this way.
2.) The advantage of a protocol is that, if deposited with the United Nations, it becomes an international treaty. It is subject to an independent international court – the UN’s International Court of Justice (ICJ) located in The Hague – not others like the ECJ.
3.) The protocol I propose has some express commitments backed by this international legal procedure which can build this missing trust. This protocol would directly address the unique circumstances on the island of Ireland, avoiding a hard border and protecting the 1998 Good Friday Agreement (the GFA) – language taken from the backstop.
But it also should reassure Unionists and Brexiteers like me that this agreement shall not change or interfere with the sovereignty, territorial status or constitutional integrity of nation states.
4.) It would also help for the avoidance of doubt that any UK-EU free trade agreement (FTA) concluded will apply to the whole of the UK, not just to Great Britain, as has been misleadingly claimed. Furthermore, that Northern Ireland will not to be excluded through its terms or through the application of differing customs or regulatory procedures.
5.) To address the specific issue justifying the Backstop invention – that in the event of the negotiation of this UK-EU FTA going beyond the end of the transition period on 31st December 2020, the Parties agree not to impose any ‘hard border’ in the interim ‘gap’. It could echo the backstop language of all parties agreeing to continue to support North-South cooperation, the all-island economy and to protect the GFA ensuring lasting peace on the island, which is not controversial.
6.) Perhaps what is newest addition would be to spell out exactly how the UK in particular would avoid a hard border, and to do so in this legal international treaty format backed by the ICJ. There is no better paper than that of the ERG written by former Northern Ireland Secretary for Northern Ireland Owen Paterson, and backed by another Theresa Villiers, David Davis, Lord Trimble, who did so much on the Peace Process, Sammy Wilson on the DUP (and myself as a contributor).
I am suggesting the main thrusts of this paper are incorporated into this protocol such as SPS (sanitary or phytosanitary) checks on animal health/plants continuing as now, but be conducted away from the physical border (the EU talks now of ‘market checks’), and the all island Common Biosecurity Zone be maintained – with a veterinary agreement that limits the necessary checks to 40 percent, not 100 percent (up from 10 percent now).
Customs declarations, or country of origin certificate and product compliance checks shall be conducted away from the physical border and be predominantly done electronically, using schemes such as Trusted Trader and Authorised Economic Operators. Other checks including VAT, tax, excise, currencies (GBP/EUR) and security shall again be conducted away from the physical land border, as now, with VAT accounting continuing to record trade with EU Member States.
Other border issues such as the Single Electricity Market (SEM) for the island of Ireland (Northern Ireland and ROI) shall be maintained; and rail services too, jointly run with NI Railways and Iarnród Éireann.
7.) To reassure Unionists and Brexiteers alike enough to clear legislation through Westminster, that in return for the measures above set out as a binding international treaty, the Parties can now accept that no part of the UK shall remain subject to the rules of the internal market nor remain in a Customs Union. No part of the UK would be made part of a ‘common regulatory area’, nor be considered part of the EU’s ‘customs territory’, though all parties would agree to work towards an extremely close and ambitious FTA in a constructive, positive and supportive manner.
8.) Regulatory convergence or divergence shall be agreed to be managed as part of this FTA and not the withdrawal agreement, and the mechanism for managing regulations shall be managed through a Joint Committee in the manner of similar FTAs. The new Business Councils can be at the forefront of this process.
9.) It should be expressly stated that no new regulatory barriers shall be allowed to develop between Northern Ireland and the rest of the UK, unless, consistent with the GFA, the Northern Ireland Executive and Northern Ireland Assembly agree that distinct arrangements are appropriate. In all circumstances, the UK will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the UK single market.
10.) Finally, I am suggesting the creation of a new North-South cross-border body to show goodwill and intent, whose job shall be to avoid any semblance of a ‘hard-border’, within the remit of the UK Government, ROI Government and Northern Ireland Executive. This body shall recommend advanced technological solutions but start from workable existing ones.
Politically, I see this protocol can move us all from a hard, fast and unpopular backstop to an internationally backed protocol and has something in it for everyone.
For the Republic of Ireland Government and Irish citizens there is a precise legal commitment that no hard border will be established if the negotiations of a UK-EU FTA are elongated, or in the absence of a FTA (a ‘no deal/WTO Rules’).
The EU (and the WTO) can be reassured that access to the Single Market and Customs Union is adequately and properly managed. That it is an agreement fulfilling the ‘improved offer’ on the Backstop pledged by the EU’s Chief Negotiator, Michel Barnier. The Protocol can be presented as an alternate ‘de-dramatized’ legally operational Backstop, as necessary.
The UK Government can be reassured an FTA will be delivered whilst the constitutional integrity of the UK is maintained, and that the agreement can be voted through successfully in the UK Parliament.
Eurosceptics such as the European Research Group (ERG), the Unionist community in Northern Ireland, and the Democratic Unionist Party (DUP) are reassured that the UK’s constitutional integrity is not undermined, the UK will not stay in the Customs Union or Single Market indefinitely by default, and the Backstop has been evolved into an acceptable form.
With time now so short I hope this thinkpiece can help unlock a solution.