Lord Bew of Donegore is a crossbench peer, a former Chair of the Committee on Standards in Public Life, and is Professor of Irish Politics at Queen’s University, Belfast.
Does the long tedious and unhappy story of the Irish backstop have one last twist? Last week, the terms of the debate began to change. Frightened by the prospect of a no-deal Brexit, Angela Merkel instructed Michel Barnier to consider a fall back plan to uphold the Good Friday Agreement.
Merkel has some form on this. In January, she held a lengthy phone conversation with Leo Varadkar in which she stressed her concerns on the Irish protocol. But this time she has clearly gone a step further. On Saturday, the Irish Times reported that the European Commission and the Republic of Ireland had begun discussions in this new context. The Irish government has reacted with visible nervousness and a determination to downplay such news.
Poor old backstop! It was initially hailed by both the UK and EU governments as the only way to save the Good Friday Agreement and a soft border in Ireland. It has now decidedly lost that status.
The shift began with the British Government. In January, David Lidington was still prepared to insist that the back-stop and the Good Friday Agreement were locked together in a harmonious fit. In February, Karen Bradley was still prepared to say the same thing. However, in the face of a mounting tide of empirical evidence that this was not the case, the Government’s position began to shift in March.
It now said that it might be necessary to disapply the provisions of the backstop in order to protect the prior agreement – namely the Good Friday Agreement. Indeed, it argued that such a conflict might create the context in which the UK might exit the back-stop altogether on the basis of an appeal to international law.
But it really is something when a significant part of the EU leadership joins the list of backstop agnostics. For 18 months or more, the EU and the Irish government have insisted that the backstop alone could preserve the Good Friday Agreement. This was the only true religion.
Now we discover that there may indeed be another possibility worthy of discussion. Of course, this exploration was inspired by the fear of a no-deal exit – one which may well recede. However, once aired and publicised in this way, the new thinking cannot simply be put back in the box.
The Government has an immediate responsibility to offer its help in this matter. After all, the current Republic of Ireland-EU discussions cannot produce solutions without UK cooperation. At the moment, these discussions are, to use the Chinese phrase, like the sound of one hand clapping. The UK could contribute a lot to such discussions. The Government’s early and revealing refusal to contemplate taking the advice of very senior European customs officials has come to an end. The war against experts is, in that sense, over. We can share their advice – which insists that a frictionless border can be created within two years.
There will still, of course, be smuggling illegality, and therefore a threat to the Single Market – and talk about intelligence-led policing along the border in line with our own and the Irish government’s strong support for United Nation’s Security Council resolution 1371. This would also be in line with Sajid Javid’s new Security Bill. It should be possible to involve in those Northern Irish officials with knowledge of the facts on the ground who were engaged in dialogue with Dublin in the early months of Brexit before it was decided that these matters could only be dealt with at the Brussels level.
It may be time to look again at the mapping exercise which underlined the backstop. At its conclusion and in the protocol itself, it was claimed that the EU context was ‘significant’ for North/South cooperation. There is likely to be truth in this. But precisely how significant? It is obvious that large areas of North/South cooperation under the 1998 agreement – in health, education and agriculture, for example, have no particular EU context. Indeed, the provisions of the backstop steal away from the working functions of the Good Friday Agreement on animal and food safety, and place them under the aegis of a new back-stop bureaucracy.
Most important of all in the short term is the effect of Merkel’s instruction to Barnier about the UK parliament. The possibility of passing a third Meaningful Vote has been receding for several days. At first sight, it has to be reduced by this new twist in the tale.
Is there really possible to ask Parliament to contort itself – to tear its heart out, some might say – to pass a Withdrawal Agreement based on back-stop provisions which a significant part of the EU leadership regards as conceivably unnecessary? It might be that one way out is to add a two year time limit to the backstop and seek the EU’s agreement. Stability of trade in Europe would be guaranteed for almost four years, and tens of thousands of jobs all over the continent would be saved at a stroke.
Another beneficiary, ironically, would be Varadkar. The rural bourgeoisie which is the life blood of his party has always been alarmed by talk of breaking with the British market for Irish agriculture. Traditionally, this has been the rhetoric of Fine Gael’s opponents, but now that party is led by a leader who sometimes gives the impression of regarding the agricultural section in a rather distant way. Varadkar’s poll numbers are not impressive recently particularly among farmers, who are perhaps less concerned about the border and the Good Friday Agreement than he is. The polls say that 43 per cent of the Irish people want a compromise with Britain. If he were to be a party to such a compromise his numbers would likely go up not down.