Throughout this week, senior Conservative colleagues who have supported Leave and Remain have been meeting with Brexit Secretary Steve Barclay and senior officials from across Government as part of the Alternative Arrangements Working Group (AAWG).
The Group was formed after the House of Commons agreed to Sir Graham Brady’s amendment requiring “the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border” to work on the precise details of what those arrangements might be.
We might have campaigned on different sides of the Referendum, but we are now united in our determination to reach a solution which works for the whole UK and which removes the most unacceptable parts of the Withdrawal Agreement.
The plan we have focused on has been dubbed the “Malthouse Compromise”, after Housing Minister Kit Malthouse, who initially brought us together. It seeks to remove the universally derided Backstop from the Withdrawal Agreement, ensuring continued seamless cross-border trade using existing techniques and administrative processes of the kind which already manage the existing border for tax, currency, excise and security.
The European professional customs body, CLECAT, endorses this view and points out that these procedures – based on intelligence and risk management – are already available in current EU law.
With the Backstop replaced, we would start negotiating a future trading relationship. But the AAWG has also considered the way forward should the EU refuse to compromise on the Withdrawal Agreement. In this “Plan B” scenario, both sides agree to minimise any disruption, ensuring that trade continues with or without a Withdrawal Agreement on the 30th March.
Whilst this is not perfect, as Nicky Morgan said, “…it would allow time for both parties to prepare properly for WTO terms, but also provide a period in which the parties could obviate this outcome by negotiating a mutually beneficial future relationship.”
Crucially, both of these outcomes deliver on the referendum as they see the UK leave the EU on the 29th March, and both are without prejudice to the form of the future UK-EU relationship. However, it is it is of deep concern that the government has not embraced this compromise enthusiastically.
Indeed, following the PM’s speech in Belfast on Tuesday, she said, a deal would only pass Parliament if, “…changes are made to the backstop.” Yet the Brady amendment did not call for “changes”. It called for the Backstop “to be replaced”.
It is almost as if the Prime Minister has forgotten the scale of the original Withdrawal Agreement’s defeat (by 230 votes) or how unacceptable the Backstop proposals remain to significant numbers of MPs on both sides of the House.
They believe it would keep Northern Ireland in the Customs Union and Single Market, creating a new political entity called “UK(NI)”.
Northern Ireland’s elected politicians (unlike those in Dublin) would have no say over significant areas of this new entity’s policy; Northern Ireland’s constitutional status would have been fundamentally altered in breach of the Belfast Agreement’s Principle of Consent and the requirement to consult the NI Assembly.
It is for this reason that Nobel Peace Prize winner Lord Trimble – a key architect of the Agreement – is now seeking a Judicial Review.
As Martin Howe QC has argued, the Backstop also contravenes the Acts of Union 1800, which state that “in all treaties with any foreign power, his Majesty’s subjects of Ireland shall have the same privileges and be on the same footing as his Majesty’s subjects of Great Britain.”
Lawyers from Herbert Smith Freehills have even found that “on the basis of the EU’s own view of what is legally allowed under Article 50 and on the basis of which the negotiations proceeded, the backstop in its present form is illegal as a matter of EU law.”
It is not only Northern Ireland that faces major challenges if the Backstop is introduced.
UK export businesses – particularly small and medium ones – will face large bureaucratic burdens such as the archaic customs practise, unused for some twenty years, of wet stamps on paper forms.
These are monumental problems, and will not be overcome with a few cursory tweaks. The Backstop in anything like its present form is simply never going to pass the Commons.
Some have suggested that these issues could be solved by keeping the UK in either the, or “a”, Customs Union. But the Prime Minister will surely remember that she has ruled out Customs Union membership more than 20 times, including in the House of Commons.
Backing down on those commitments now would be seen by many as reneging on the referendum result, tying the UK to EU trade policy with no say in its direction, which is a clear contradiction of the 2017 Conservative Manifesto.
Instead, the Prime Minister has a strong hand to play – one given to her by Parliament in the recent vote. She should present the EU with clear, practical, alternative arrangements to the Backstop. Such arrangements are in the Malthouse Compromise, agreed by both Remainer and Leavers.
By adopting them, the Government will honour its commitment to the people of Northern Ireland that they will remain an indivisible part of the United Kingdom and, above all, deliver Brexit on time and in full.
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