The Good Friday Agreement is about to be deployed in a last-ditch bid to keep Brexit on track.
U.K. Prime Minister Theresa May is working on an audacious plan to maneuver the EU into giving legally binding guarantees on the Irish border post Brexit that she hopes will persuade her Democratic Unionist Party backers to support her Brexit deal.
Her bold gambit is to use one of the EU’s staunchest arguments — the need for an “all-weather” Northern Ireland backstop to preserve the Good Friday Agreement — against it. It follows accusations from DUP MPs and other leading unionists that the backstop itself contradicts the very historic peace agreement that it is designed to protect.
According to two senior U.K. figures familiar with the Cabinet’s internal discussions, May’s most senior advisers are working on a proposal to resurrect a key section of the original backstop deal reached over a year ago, but left out of the final agreement, to the DUP’s fury. The December 2017 “sufficient progress” agreement set the stage for phase 2 of the Brexit talks, which in turn led to the Withdrawal Agreement agreed by May’s government in November last year, containing the controversial backstop.
The plan could be the final roll of the dice for May’s Brexit deal, which was heavily defeated in parliament earlier this month. Despite promising after that defeat to look for cross-party compromise on the form of Brexit the government would pursue, the prime minister appears to have settled on doubling down on her original strategy of winning over the DUP and her Brexiteer backbenchers.
Making the backstop more palatable is crucial to that approach. But for that, the government needs help from Brussels.
Political horse-trading
Last week, Chancellor Philip Hammond said he thinks the door is still open for changing the deal. “They’re not prepared to compromise on the fundamental principles, but they certainly are looking at whether there is anything they can do without compromising those principles that would help,” he said in an interview at the World Economic Forum in Davos, Switzerland.
May will first wait until after Tuesday’s crucial parliamentary horse-trading, when MPs will vote on a series of proposals that the government hopes will send a message to Brussels about what the House of Commons is prepared to endorse. After that, Downing Street wants to restart talks with the EU.
“They [the EU] know they need to do something, but they are asking what do we want,” a senior U.K. official said. “We know we need to get the answer exactly right this time. Tuesday is the key.”
That’s when the plan to resurface the December 2017 deal will be deployed.
MPs from the DUP and senior Northern Ireland experts advising ministers claim paragraph 50 of the draft backstop agreement first thrashed out in 2017 reflected core provisions of the Good Friday Agreement, which effectively gave Belfast a veto over further joint-working with the Republic of Ireland. However, this section was subsequently left out of the final Withdrawal Agreement, sparking fury in Belfast.
May is now planning to seek legally enforceable commitments from Brussels resurrecting paragraph 50 of the original backstop agreement, officials who spoke on condition of anonymity said. “Paragraph 50 needs to go back in,” said one senior U.K. official familiar with the prime minister’s thinking.
In a policy paper published Sunday, Paul Bew, a former adviser to the Nobel Peace Prize-winning unionist leader David Trimble, called on the U.K. government to get on the front foot over the Good Friday Agreement, accusing Dublin of “weaponizing” the accord.
Bew said: “In the interests of protecting the Good Friday Agreement, any Backstop arrangements which might be agreed primarily to protect the economy of the Irish Republic in a context of crisis can only be temporary … the UK cannot allow the Republic of Ireland’s government to unilaterally escape its obligations under the 1998 Good Friday Agreement.”
The plan risks angering Dublin however, where it is seen as handing an effective DUP veto over a key part of the way the Brexit agreement would operate in future. That is “politically impossible” for either the Irish government or Brussels, according to one senior EU27 diplomat.
“It’s pretty desperate stuff,” the diplomat said, rejecting the claim that the backstop itself undermined the Good Friday Agreement. “It’s a bit rich. It’s something of the devil quoting scripture for his own benefit.”
Downing Street is alive to the sensitivities of invoking the Good Friday Agreement in its final showdown with Brussels and is working carefully to draw up proposals that stand a chance of being negotiable, while also acceptable to the DUP.
The 10 MPs from Northern Ireland’s biggest unionist party not only prop up May’s government, they are seen as the key to unlocking the support of Conservative hard-liners in parliament. If they fall into line then many backbench Brexiteers will also.
North-South cooperation
Paragraph 50 guarantees that the U.K. will ensure that no new regulatory barriers will develop between Northern Ireland and Great Britain, “unless, consistent with the 1998 [Good Friday] Agreement, [and] the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland.”
Leading Northern Irish unionists say this provision replicated a key element of the Good Friday Agreement that deals with areas governed on a North-South basis.
In the January 9 House of Commons debate about the proposed Brexit Withdrawal Agreement, the DUP’s Gavin Robinson made the case that the Brexit deal had diverged from this key principle.
“The rationale behind paragraph 50 was that it replicated paragraph 12 of strand two of the Belfast agreement [ie the Good Friday Agreement],” he said. “It is now impossible for the government to say that they implement and respect the Good Friday agreement in all its parts, because paragraph 50, and the parts of the Belfast agreement that I have referred to, do not feature at all in the Withdrawal Agreement.”
The first area covered by the North-South provisions in the Good Friday Agreement is agriculture. But according to the backstop, as it is currently worded, agriculture will not be dealt with on a cross-border basis, but specifically by the EU without U.K. involvement. The U.K. government is seeking changes on that front.
The second area Downing Street wants to deal with to assuage DUP concerns is the regulation governing the food industry. Under the current Withdrawal Agreement, this is the one key area where Northern Ireland will enter a different regulatory environment to the rest of the U.K. (where it is not treated differently already).
Downing Street wants to change this so that Northern Ireland remains in lock-step with the rest of the U.K. This could potentially be done by the whole of the U.K. adopting EU agri-food regulations.
A third strand of the changes the U.K. is seeking to agree is a time limit on the backstop, but this remains highly contentious with Brussels. In any case, Downing Street hopes it may not be necessary to bring the DUP on board.
For all the changes, No. 10 wants legally watertight guarantees. “Something legally enforceable,” according to the senior U.K. official.
One option that has been discussed by Cabinet ministers and leading Northern Ireland experts is to push for the EU to make commitments under international law to honor the provisions of the Good Friday Agreement, three people privy to the discussions said.
One leading Northern Ireland expert involved in advising Cabinet ministers said: “The DUP need international cover [but] we already have an international agreement: the Good Friday Agreement. We need to show that this will return as the structure for North-South cooperation as before. There needs to be something which shows fidelity to the Good Friday Agreement.”
The expert said the Withdrawal Agreement as it stands would do great harm to the Good Friday peace deal. “It’s pure balls that [the Withdrawal Agreement] is consonant with the Good Friday Agreement as it stands. All that is pure bullshit,” the expert said.
“An enduring backstop would do great harm to the Good Friday Agreement template,” which lays out the framework for North-South cooperation. “We cannot possibly agree to a long-term collapse of these principles,” the expert added.
The senior U.K. official said it is imperative for the U.K. to win a legally enforceable concession from Brussels to win back the support of the DUP — and with them potentially scores of Tory MPs.
“The DUP want to be able to say to their voters: ‘We made Theresa May make Leo Varadkar do this.’”