13 December 2018

Reasons to be fearful about rejigging the backstop


This thing all things devours:
Birds, beasts, trees, flowers;
Gnaws iron, bites steel;
Grinds hard stones to meal;
Slays king, ruins town,
And beats high mountain down.

Recent days have seen one Tory MP compared to Aslan, and a tree parked so closely outside 10 Downing Street that the doorway turned into the far side of CS Lewis’s wardrobe. But perhaps a better comparison comes not from Narnia, but from the pages of Tolkien. The answer to Gollum’s riddle, above, was “Time”. And that commodity is swiftly eroding for the British government right now.

The immediate consequence of the Conservative confidence vote result has been to buy a few hours. EU leaders today have the opportunity to negotiate, or more realistically present, the Prime Minister with a sticking plaster for the deal that has been so badly mauled in Parliament. It has also, I would suggest, had the incidental effect of generating focus. Both the Political Declaration and the Transition Agreement carry considerable baggage across a number of areas of major concern. But that vote means that the core focus is settled on just one element: the Irish backstop.

There will now be an attempt to assuage those worried about the words in that deal, but without actually changing the words themselves. One MP reporting on the PM’s speech to the ’22 Committee said that she pledged “It would be legally binding that it’s temporary. That’s the key thing.” But is that placing too much faith in the Commission’s interpretation of its own honeyed words?

Buzzfeed and other outlets have reported on the EUCO draft response. While the text as leaked was still open for negotiation, it still provides a clear pointer. It begins by underlining that the EU doesn’t intend to haggle, and certainly not to renegotiate. But then, why should it? It has long had Whitehall by the cojones.

The draft does state that the backstop does not represent a “desirable outcome”; and that it is in place as “an insurance policy” to prevent a hard border on the island of Ireland. The problem with that is that insurance policies do get cashed in when things don’t work out so well; and undesired outcomes occasionally have a habit of happening in life.

The language itself is rather sunny and positive – “firm determination”, “best endeavours” and the like. It even has space for inserting some extra wording from the Brits, providing they didn’t go too far and actually change or contradict the withdrawal agreement. This very reticence to provide a robust key to a potentially very rusty lock ought to alarm the reader, particularly given the prospect of the EU dragging its heels during talks to get major added negotiating pressure as, once more, negotiating deadlines approach. This is an inescapable temptation, and an unprovable defence for the UK under the current text, making it a very real risk.

It seems then that the makeshift raft that Attorney General Geoffrey Cox was keen to get out into the shipping lanes may be made more out of balsa wood than teak.

Ultimately, this piece of paper will be an issue of trust and faith. The track record of the EU over the former has been poor. It has a record of abuse, most infamously over using Health and Safety clauses to get round the UK’s Social Chapter opt out, and more recently the same wheeze to get policy footholds on North Sea energy policy via the rigs. Or again, the gross abuse of the Disaster Clause to get British money for the Eurozone Bailout.

Its record on faith is even poorer, having banned consideration of such matters from its own Constitution. And more prosaically, its track record in honestly pursuing meaningful and durable compromises and delivering safeguards is particularly sticky, from John Major’s piffling change on QMV delaying thresholds in 1994, down to the paddling-pool shallowness of the Sovereignty clauses in David Cameron’s 2016 deal. None of this reputation will now be helped if reporting is accurate and Mrs May will indeed be given just ten minutes to set out what she wants to see going into the text.

Meanwhile, the political leaders within the European Parliament have themselves set out their stalls. The conclave that constitutes the Conference of Presidents (presumably far from unanimously, though the press release neglects to reflect this) for its part has also declared for the sacrosanctity of the Immaculate Text. The media release explains, “renegotiating the backstop was not possible since it is the guarantee that in whatever circumstances there could be no hardening of the border on the island of Ireland”.

Meanwhile, MEPs sought to pursue “as close as possible future EU-UK relationship such that the deployment of the backstop would not be necessary”. A guarantee is again mollified by an aspiration, which suits anyone pursuing the agenda of keeping the UK locked into a burdensome regulatory and customs union.

They concluded, as the Council and Commission will later today, that “the backstop is in any case to be used only as a measure of last resort”. Measures of last resort sounds like a Morrissey album. In this case, the prospect is graver.

It might be worth recalling some of the other things that have been done as “measure of last resort”. The suspension of Schengen arrangements is only supposed to happen in those very circumstances. I’ve lost track now over the years of how many times that has happened – there are seven authorised suspensions happening right now.

EU sanctions are intended to be applied under those terms. Migrant detention is supposed to only happen in such an event. Bans on Uber-style companies are only supposed to happen if those circumstances are met. The same applies to market intervention in cereals.

Anybody looking at that sort of terminology and interpreting it as a cast iron guarantee is playing at roulette. They may get lucky. But the odds are also heavily dependent on whether the croupier is honest, and in this case he has a personal stake. That at least should be cause for reflection and caution.

So, it is hard to argue with Dutch newspaper Volkskrant’s take on recent developments; “After the victory, May is still left with a Brexit agreement which the EU does not want to change fundamentally and which is unacceptable to a majority in the Commons.”

The core dilemma remains. Does Parliament trust the EU, which has a vested interest in using the backstop as a negotiating lever, not to use that lever to get better terms? It depends on trust and in fair play associated from the words being generated today, which is a risky policy to follow given both the high stakes and some of the comments already made by the likes of Martin Selmayr.

We ought then to be paying much closer attention to the text that the EU refuses to scrub. In particular, MPs should ponder with alarm Article 18 of the backstop, the Safeguards Clause. This allows, in particular circumstances, for either party to unilaterally suspend part of all of it. At the risk of slightly repeating a previous CapX observation, the caveats here are very malleable, but with even wider potential consequences than I had originally clocked.

In the first place, it allows the Commission to intervene and to suspend market access in areas where EU competitors are complaining. This, peculiarly, was overlooked in the advice dragged by Parliament from the Attorney General, who indeed even suggested to the House that Ulster was getting a competitive advantage from the backstop. If so, not for long at all – and with that EU failsafe, the motive for ditching the backstop in Brussels dies too.

The second concern is over the introduction of the “societal difficulties” trigger. There is a mechanism for unilaterally suspending the backstop on the UK side – but it requires a dissatisfied community in Northern Ireland to engage on mass protests and civil unrest to legally justify triggering it. This, alarmingly, constitutes a Rioters’ Charter. By keeping the backstop untouched in the text, this troubling and potentially destructive clause is kept there too.

Ultimately though, the backstop is the nuclear option. The problem with this deal remains that a nuclear strike is the default, rather than simply the last resort. And the risk with today’s activity is that it is simply about deciding what message to chalk on the side of it.

Dr Lee Rotherham is Director of think tank The Red Cell, Executive Director of Veterans for Britain and Chairman of the appeal to establish a Museum of Sovereignty. He was Director of Special Projects at Vote Leave.