Political declaration offers DUP a way out

‘Backstop” gets just one mention. “The Parties recall their determination to replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing.”

The subtext is clear: no one likes the backstop and no one wants to see its use triggered.

The joint EU-UK political declaration on the future relationship between the two, released on Thursday, is an aspirational document without the binding legal force of the withdrawal agreement (WA) which will be agreed with it at the summit on Sunday. The WA provisions on the backstop remain in place.

The declaration is a document that has clearly been drafted mainly to assist British prime minister Theresa May in persuading MPs, Tory, DUP and Labour, to support her when the two documents come to the Commons for a vote.

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DUP votes

And May has not given up yet on Arlene Foster, the DUP leader. The British prime minister still needs the votes of the DUP to secure that Commons vote. Despite the party’s indications it can’t support her, May’s advisers cling to the view that the confidence-and-supply agreement with the government still has legs.

The secret to bringing the unionists on board lies in convincing them that in the event of the agreed backstop being triggered not only will there be no customs border in the Irish Sea – job done in the WA – but that there will also not be, as the DUP insists, one single jot of a regulatory divergence between Northern Ireland and the UK. No need then for any Larne-Stranraer checks.

Downing Street has been pushing hard in recent days to promote the significance of draft WA treaty references to those possible “alternative arrangements” to the backstop, mainly the UK’s long-standing “technological” option already rejected as inadequate by the European Union.

But she now also says that she is willing to sign up to continuing regulatory alignment of the whole of the UK to the EU following the two or possibly three years of extended transition if it means Northern Ireland need not have its own separate regime.

“If we were in the situation where the backstop had to be in place for a matter of months, for example,” May told MPs, “it would be right for the United Kingdom to give the commitment that we would not be looking to diverge from regulations during that period and that we would ensure that we kept that free access for the goods from Northern Ireland coming into Great Britain, as we have committed in the withdrawal agreement . . . and as we had committed previously,” she said.

The backstop commitment envisaged in the WA involved the whole of the UK continuing to be part of the EU’s customs union. But, with customs union membership deemed insufficient to safeguard the single market, the EU had insisted that Northern Ireland would also have to sign up to significant additional elements of regulatory alignment – 27 pages of them in the WA – and checks.

May is now saying that, to avoid that differentiation of the North, she will sign the UK up to those rules for a short period if it is necessary to complete the negotiation of the comprehensive long-term relationship that would negate the need for a backstop.

Questionable assumptions

But two of her key assumptions remain deeply questionable. The EU negotiating task force has already rejected the idea that UK alignment to the basket of rules to which the North will be required to adhere would be sufficient to protect its single market. The small size of the North and its particular troubled history justify an exception to its border requirements – the UK, it was told, is too large also to be allowed an exception.

And May assumes that agreeing an alternative comprehensive agreement with the EU – that would surpass the backstop in safeguarding a frictionless border – could be achieved within months of the expiry of the extended transition period. Few agree.

Most observers doubt whether the UK would ever be willing to cross its own red lines to accept the degree of reintegration into the EU’s single market and its rules that such a “better” deal would require.

May needs to sell the political declaration and the WA as providing alternatives to the backstop, whether in the form of technologically-based solutions or all-UK regulatory alignment.

But those largely unworkable alternatives, which would in any case require unlikely EU sanction, do not replace or supersede the legally operative backstop to be enacted in the WA. The insurance policy remains in place and hopes on all sides that its use will not be needed are largely wishful thinking.

On the other hand, if the DUP wants to find an honourable way of now backing May, there is plenty of language in this declaration which could accommodate such a U-turn.

Patrick Smyth is Europe Editor in Brussels