ConservativeHome wishes the Brady amendment the very best of luck tomorrow. Its core proposal is to replace the Northern Ireland backstop with “alternative arrangements”. The phrase is usually read as a code for the maximum facilitation plan first outlined by the Government during the summer of 2017 in a position paper. The idea was dismissed by Sabine Weyand as being like “a hunt for the unicorn”.
Before last week, it would have been easy for the EU to stick to this script. That has become more difficult now that Michel Barnier, no less, has said that “my team have worked hard to study how controls can be made paperless or decentralised, which will be useful in all circumstances”. Maxfac suggests the use of new technology away from the border; Barnier wants paperless controls away from the centre in question (namely, the border). He has thus become the unicorn hunt’s latest recruit.
It is easy to show up the self-contradiction embedded in the EU’s position. (This first emerged a while ago: Barnier originally suggested that most checks between Great Britain and Northern Ireland, as now envisaged under May’s deal, should take place away from the sea border itself.) It is harder to believe that it will now drop the entire backstop simply because Barnier has been proven to indulge in a bit of “magical thinking” himself.
To abandon the backstop when it was first floated, towards the end of 2017, wouldn’t have meant a loss of face. But too much political capital has been invested in it now, by both Brussels and Dublin, for it to be junked altogether. Furthermore, the Brady amendment may not win the support either of some pro-Remain Conservative MPs – who will take precisely that view – or of some ERG members and other Brexiteers, who have objections to May’s deal that stretch wider than the backstop.
The potential coalition against a new plan to solve the backstop riddle might be less powerful. Its author is Paul Bew – the crossbench peer, Chairman of the House of Lords Appointments Commission and former adviser to David Trimble when the latter helped to negotiate the Belfast Agreement. Bew is a heavyweight who knows his stuff. The heart of his plan takes us back to the Joint Report agreed between the UK and EU in December 2017 in which the backstop was first made public,
Article 49, which set out the all-Ireland terms of the backstop, was balanced by Article 50, which established an all-United Kingdom counterweight. The former reminded the Government of its guarantee “of avoiding a hard border”. The latter committed it to ensure that “no new regulatory barriers develop between Great Britain and Northern Ireland” unless the Northern Ireland Executive and Assembly agree them.
You may well ask how it is possible for there to be no new regulatory barriers between Northern Ireland and Ireland, and between Great Britain and Northern Ireland, and for the whole United Kingdom to leave the EU. But let us not detain ourselves with the thought that these combined clauses make no sense. Theresa May later promptly connived in dropping Article 50 from the Withdrawal Agreement, thereby approving the new regulatory barriers between Northern Ireland and Great Britain which she was previously committed to oppose.
The essence of Bew’s case, as set out in a Policy Exchange paper today, is that the dropping of Article 50 places the backstop itself in breach of the Belfast Agreement. “The backstop, by placing key areas of North-South co-operation under the operation of a new regime, without the consent of the Northern Ireland Assembly, would turn the agreement on its head,” he writes. He concludes that the Irish Government is solemnly committed to the whole Agreement in international law, and that the backstop must be strictly time-limited.
Bew is thereby picking up the Irish Government’s most powerful card – the Belfast or Good Friday Agreement – and playing it against that government itself, claiming that Downing Street “has allowed the Irish Government to weaponise the 1998 agreement in a way that prevents compromise on the backstop”. Dublin will resist Bew’s reading of events. Were he almost anyone else, this might be relatively straightforward. But it will not be easy to rubbish an adviser to the Nobel Peace Prize co-winner who helped to create the Agreement.
The Government is reported this morning to be taking the Bew plan seriously. And proposals to amend the backstop must stand a better chance of success in the negotiation than proposals to remove it altogether. As Nicky Morgan writes on this site today (and as we did yesterday), the Prime Minister cannot simply hide behind the Brady or Murrison amendments, which the Speaker might not select tomorrow in any event. He would find it harder to refuse a Government amendment that gives at least a nod to the Bew plan.