When Theresa May brought the withdrawal agreement back from Brussels in mid-November, she proudly pointed to the Northern Ireland-Ireland Protocol as offering certainty and reassurance to those concerned to avoid a hard border on the island of Ireland.
On Tuesday, she stood in the House of Commons and declared that she would return to Brussels to seek “a significant and legally binding change to the withdrawal agreement”, specifically with regard to that very same protocol. For, as she succinctly put it, “this House wants changes to the backstop before it will back a deal”.
May is spurred on by the existence of a majority in the House for replacing the backstop (as per the “Brady” amendment passed on Tuesday evening), but momentum without direction can be self-destructive. What might she bring to the table as a suitable alternative to the complex and carefully negotiated arrangements of the backstop?
There have been no such details in May’s statements to the House of Commons these past two days, but there is a lot of speculation in Westminster that she has been gifted a present from an unlikely pairing of Remainers and Brexiteers within her own party: the so-called Malthouse compromise.
When details of the compromise emerged on Tuesday, it was the fact that it could garner support across the Conservative Party that was perhaps its most attractive feature. Some commentators have even gone so far as to suggest that this makes Conservatives more willing to face a general election, confident that they (unlike Labour) could offer a clear policy on Brexit. To what extent, though, could this so-called Plan C constitute a serious replacement for the protocol?
The Malthouse compromise is a combination of two other “plans”. One is a “managed no deal”, in which we have a transition period (for which the UK makes a financial contribution) but without the fuss and bother of a legal framework for withdrawal. The other, a little more serious, is to revise the withdrawal agreement and specifically to “replace the backstop with an acceptable indefinite solution”.
‘A Better Deal’
The source of this “solution” comes from the optimistically titled document A Better Deal. That paper was first launched on December 12th, 2018, written by three darlings of the pro-Brexit European Research Group (ERG) of the Conservative Party: Shanker Singham of the Institute of Economic Affairs, lawyer Robert MacLean and customs expert Hans Maessen.
It has received vocal support from former Brexit secretaries David Davis and Dominic Raab, plus the DUP; indeed, it was at a promotional event for A Better Deal in January that Arlene Foster made her infamous comment about there never having been a hard Irish border. Such support increases the likelihood that we will hear its claims played on repeat for many weeks and months to come.
A Better Deal envisages a future UK-EU free trade agreement with a “new protocol” to replace the hated backstop. How does it purport to avoid a hard border on the island of Ireland?
These measures begin to look rather like the 'related checks and controls' they are claiming to avoid
Well, primarily through promising not to have one. The two parties are to simply “agree not to place physical infrastructure or introduce related checks and controls on the Irish Border in any circumstances”. If this was a primary school project, it might be quite sweet to think that good intentions could substitute for international law and dispute-resolution mechanisms. As a proposed alternative to a legally binding protocol in the withdrawal agreement, it isn’t quite so beguiling.
Checks and controls
The second means of avoiding a hard border is the use of “existing technologies and systems”. Closer inspection of this claim shows that this will still require new IT systems on both sides, customs declarations on all goods moved across the Border, technical checks albeit taking place at a “reasonable distance from the Border, including in facilities on either side of their common land border”, “random checks”, Union Customs Code measures, inspections by Her Majesty’s Revenue and Customs or the Irish Revenue Commissioners at importers’ premises. All of this begins to look rather like the “related checks and controls” they are claiming to avoid.
So, if it fails to protect the openness of the Border, what might be attractive in A Better Deal for both sides of the Tory party? It offers a time limit for the backstop and unilateral withdrawal. It proposes that, 10 years from end of the transition period “either party” may terminate the protocol.
That said, it is not quite so neat. One of the annexes to this protocol (on “Irish Border Measures”) is set to “continue in force” even if the protocol is terminated, “and the parties shall agree such modifications and additions necessary for its provisions to continue to take effect”. So, bizarrely, an annex to a protocol would not only remain active after the protocol is no longer in force, but it would be supported by new measures from both sides to ensure this is the case.
It didn’t take long for the Malthouse compromise that emerged on Tuesday to be shot down by the EU. But that is unlikely to be the end of it. After all, the proposal represents an agreement between two sides of the Tory party, and that is perhaps the most critical negotiation process of all in this phase of Brexit.
Katy Hayward is a reader in sociology at Queen’s University Belfast, and fellow in the Senator George J Mitchell Institute for Global Peace, Security and Justice