31 Jul 2019

Front-stop Formula. Why the new Prime Minister thinks the Withdrawal Agreement can be recast

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Boris Johnson is in Belfast today in an attempt to assist the restoration of devolution in Northern Ireland. Inevitably, however, his discussions have also involved Brexit and the particular challenge that the Irish border continues to pose to the process of an orderly exit from the European Union.

There is, furthermore, an explicit political link between the existence, or not, of the executive and Assembly in Northern Ireland and the Brexit process. Theresa May attempted to render the vexed matter of the backstop more tolerable by exploring means by which Northern Irish politicians might have some control over whether and how it operated in practice. These attempts at devising a form of ‘Stormont Lock’ proved futile because there have not been functioning political institutions (bar local councils) in the Province since January 2017. A ‘Stormont Lock’ without a Stormont was not much protection against the adverse implementation of the Withdrawal Agreement.

If the impasse around the proposed Irish Language Act (which Sinn Fein favours and the DUP dislikes) can now be resolved by an elaborate compromise, then the return of devolution to Northern Ireland could be the first step in a chain of events that allowed the UK to leave the EU with a deal on 31 October 2019.

As of this moment, that outcome might appear extremely unlikely. The new Prime Minister has spent much of his first week in office placing more chips on the roulette table in terms of meeting the date that he has set for departure. In rhetorical terms, he has doubled down on the need for the backstop to be eliminated and has added emphasis to his assertion that the Withdrawal Agreement is “dead”. The response of Brussels and Dublin in turn has been to stress that it remains the only show in town.

This might appear to be a political chasm with the implication that either a no-deal exit on 31 October is the most probable result, or that if Parliament blocks this (which it probably will), then there will be a general election not long after at which Mr Johnson seeks to win a mandate for a no-deal by the end of this year. These might turn out to be the options in the end but the odds on there actually being a settlement on or about the 31 October deadline are currently being underestimated. What the UK Government could settle for is a codicil of legal weight to the Withdrawal Agreement which has the effect of keeping the backstop in the text but neutralising it as a realistic policy instrument.

As matters stand, the existing language of the Withdrawal Agreement states that if an ‘end state’ accord between the UK and the EU is not reached by 31 December 2020 (which it plainly will not be), then the transition arrangements can be extended for an extra 12 months (which they would be) and if at that point (31 December 2021) there is still no comprehensive free trade agreement then the Irish backstop would come in to force, in effect compelling the whole UK to remain tightly bound to the single market and the customs union until the EU signed off on a new relationship. This is what has been so toxic. What Mr Johnson wants and needs may be described as a ‘front-stop.’

This would be an alternative set of arrangements between London and Dublin (and Belfast) that would be triggered ahead of, and instead of, the backstop and which would serve as the model, not only in the theoretical state that the UK and the EU had not reached a final bargain by January 2022, but as the permanent means by which the border issue would be dealt with in such an agreement whenever it was struck and signed.

Some ‘front-stop’ formula has to be found because even under a Canada-style outcome, which the new Government advocates, the question of how to maintain an open border between Northern Ireland and the Republic of Ireland which is compatible with EU rules with regards to the single market and the customs union has to be addressed eventually. The real political issue over the next eight weeks is whether the EU is open to what would be a version of a side letter with solid legal authority which sets out what a distinct ‘front-stop’ would look like.

Why does the Johnson camp think such a ‘front-stop’ might be acceptable to the UK and EU alike?

The EU also has incentives to want a Brexit with a deal to be witnessed on 31 October

While the unity of the EU-27 over the past three years plus has been impressive, it has also been exhausting. Brexit has been a huge distraction from other business. It will continue to be, either if there is a no-deal Brexit (which would be extremely disruptive to several member states as well as the UK) or if there had to be another lengthy extension to Article 50 to avoid the no-deal standoff.

The date of 31 October is also highly significant in terms of the EU’s internal politics. It marks the last date of Jean-Claude Juncker’s term as President of the European Commission and Donald Tusk’s role as President of the European Council. It also (more informally) will mark the end of Michel Barnier’s tenure as the EU Chief Negotiator on Brexit. It would be a huge institutional relief if stage one of the Brexit saga could finally be completed at the end of their collective watch rather than be thrust upon an entirely new and much more inexperienced set of actors as of 1 November.

Of all the various EU leaders, Angela Merkel (one of whose closest supporters is scheduled to replace Mr Juncker) is the individual who would see most value in drawing a line under Brexit sooner rather than later. If that could be done by an annex to the Withdrawal Agreement, then this ultra-pragmatic politician would not merely raise no objection to it but be an active advocate for such a route to a solution. It would also hardly be out of place with the EU’s long tradition of convoluted last-minute settlements.

Dublin is now in a badly exposed position on Brexit and the backstop

The numbers in the Irish Parliament make those in the UK House of Commons look straightforward. Leo Varadkar, the Taoiseach, heads a minority Fine Gael administration that can only carry on in office if the second largest party and its traditional rival, Fianna Fail, is willing to let it do so.

There has been a tacit understanding with some formal framework between these forces since an inconclusive election in the Republic in 2016. Fianna Fail did not wish to enter government as the junior partner of a version of a ‘Grand Coalition’ but instead wanted to remain in Opposition and rebuild itself as a political party after what was a devastating decline in its popularity after the global financial crisis. It feared it would lose an early election and was willing to let Mr Varadkar hold sway in power. He has enjoyed a long honeymoon with the electorate and has been able to impose his own Brexit policy.

That situation has changed in the past few months. Fianna Fail is ahead of Fine Gael in opinion polls. An election within a year is very likely. A majority no longer approves of Mr Varadkar’s Brexit stand. A no-deal outcome on 31 October would be a catastrophe for him. He would either have to (a) leave the border as it is (so what was the backstop fuss about then?), or (b) introduce a very soft unofficial border some distance from the real one (which is close to what a ‘front-stop’ may be), or (c) reinstate the border himself (which London certainly will not do) under duress from the EU-27 to protect the integrity of the single market and the customs union. If that were to be seen, the Irish economy would take an enormous hit due to an action of its own and the Taoiseach would be toast. Dublin is now, politically, the weak link in the EU-27 chain. Mr Varadkar needs a deal to be reached.

If the DUP moves on Brexit then Mr Johnson will secure a majority in Parliament for his deal

A ‘front-stop’ that is sufficiently appealing to the DUP would transform the arithmetic inside the House of Commons. The process of bringing them over the line would be eased by the restoration of devolution in Belfast and an additional financial package in Ulster. The best interests of the DUP lie in the emergence of a ‘front-stop’ for which they would take all the credit in Northern Ireland. The new Prime Minister’s series of talks with them and the other parties today will be the first of many.

Tim Hames
Director General, BVCA


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