On 29 January, the House of Commons threw Theresa May a lifeline. The Brady amendment said that the House would support her deal if the backstop is “replaced with alternative arrangements to avoid a hard border”. It was passed with the united support of pro-Brexit Conservatives and of the government’s DUP partners.
So the Prime Minister needs to do what the Brady amendment says, which is to make the EU’s acceptance of alternative arrangements a condition of reaching a deal. This would involve conventional customs and regulatory controls being exercised on goods which cross the land border, but using “away from the border” means.
Unfortunately all the signs are that she is not doing this. Apparently blind to the actual words of the Brady amendment, she talks of making “changes” to the backstop, rather than replacing it.
Supporting the Brady amendment was a huge concession on the part of pro-Brexit Conservatives. Theresa May’s deal without the backstop is still a very bad deal for the UK. It contains a two to four year transition period, costing at least £39bn, during which the UK will be a vassal state, beholden to obey EU laws without being able to vote on them so that, for example, the City could be gravely damaged by regulatory changes designed to benefit the Eurozone.
The Brexit supporters’ willingness to compromise despite these grave flaws left the Prime Minister with a way through to a deal which the Commons would support.
The current backstop would either lead to Northern Ireland being carved off from Great Britain and being ruled effectively as an annex of a foreign state, or the whole of the UK having its freedom to conduct an international trade policy destroyed.
The fundamental problem with the backstop is that of “lock-in”. As the Attorney General explained with clarity in his advice to the Cabinet, a deadlock in negotiations for a long term agreement would mean that the UK would find itself locked in to the “backstop” Protocol with no legal escape route, and the Protocol would “endure indefinitely”.
It is now rumoured that far from replacing the Protocol as instructed by the House, the Prime Minister is now seeking some “keyhole surgery” to it. An addendum or codicil would be added to the Withdrawal Agreement, reiterating previous assurances about “the temporary nature of the backstop” previously given in letters from Presidents Tusk and Juncker.
Words which reiterate those assurances or re-emphasise the temporary nature of the backstop are worthless in solving the lock-in problem. The existing legal text says that the backstop is “intended to apply only temporarily”. The Attorney General’s (correct) advice was that despite those words, the backstop protocol would “endure indefinitely”. So, repeating the intention that the protocol should be temporary with greater emphasis simply does not solve the problem that the UK cannot exit from it. So the UK could be blackmailed into having to swallow unacceptable terms as the only route of escape.
The acid test of any such “keyhole surgery” is not whether it secures some vague or nuanced changes to the legal fog surrounding the backstop, but whether it gives the UK a clear and unconditional legal right to break out of the backstop if negotiations fail. Only a treaty-level clause which confers an unconditional right on the UK to exit the backstop would work. Preferably this should be inserted into the actual Protocol text, but if it is in an addendum or separate document it must be crystal clear that it over-rides the Protocol text and is not just some kind of interpretation of it.
I fear that the Prime Minister has given up even asking for that. If so, we will end up with another pointless exercise in attempting to alter perceptions of the deal but not its substance.
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