A possible way through on the Northern Ireland backstop?

The prime minister had a difficult task on her visit to Northern Ireland on Tuesday. On her last visit in November, she hailed the Withdrawal Agreement as a good deal for Northern Ireland and defended the controversial “backstop” as an essential safeguard in ensuring no return to a hard border with the Republic. This time she had to acknowledge that the Withdrawal Agreement was unacceptable to the British parliament, with the backstop identified as the main problem.

She must now try to find changes that make it acceptable to the British parliament, reassuring MPs that it is not a trap for the UK, while also upholding her commitment to a solution that works for the whole community in Northern Ireland. Her situation is complicated by the apparent hardening of the EU’s stance in the last two weeks, as the key negotiators insist the backstop is the only show in town. As the clock ticks down, and the possibility of no-deal looms, the question for May is whether she can find a proposal that is acceptable to all these different groups.

So far, the EU has been reluctant to budge. The other heads of government—and especially the Irish government—see the present political instability at Westminster as proof that the backstop is needed, further evidence that Brexit Britain can’t be trusted unless there is an insurance policy written into law. May’s decision to back Graham Brady’s amendment last week—the one which sought “alternative arrangements” to the backstop—went down particularly badly in Dublin. Back in London, the prime minister has been criticised for prioritising a compromise with her own backbenchers and the DUP rather than reaching out to secure cross-party support for her deal.

The truth is the concerns of the DUP were always going to be a factor in these negotiations, especially to a prime minister who sees herself as a Unionist. As May acknowledged in her Belfast speech, the backstop is opposed by the two Unionist parties in Northern Ireland, including the Ulster Unionist Party. Many Conservative MPs also look to the Unionist parties for guidance on this issue. For the time being, the DUP are walking in step with the Tory Brexiteers in the European Research Group.

There are, however, a number of things which might appeal directly to the DUP—in turn making it easier for the ERG to come around to the deal. Crucially, these things would probably be accepted in Brussels, and would be consistent with the approach set out by May in her Belfast speech.

The first thing would be to have paragraph 50 from the December 2017 Joint Report reinserted in the text of the Withdrawal Agreement. This concerned the role of the Northern Ireland Assembly in consenting to any future divergence between Northern Ireland and Great Britain. In its recent paper on Northern Ireland, the UK government developed the idea of a “Stormont lock” on any new EU legislation affecting Northern Ireland under the backstop.

The government also outlined a role for Northern Ireland representation on the Withdrawal Agreement’s arbitration committee on matters concerning the region. These commitments were accepted by the EU as unilateral measures, but their significance has so far passed unacknowledged by Unionists in Northern Ireland. Writing them into the Withdrawal Agreement—or adding the text of Donald Tusk’s recent letter of reassurance to the prime minister as an annex—could satisfy the DUP demand for legally-binding changes to the text, while also reassuring that the EU and the Irish government are prepared to listen to their concerns.

Another thing that the government could do is to look again at the exit mechanism from the backstop. One of the DUP’s concerns is that the EU—in particular the Irish government—would insist that there are no acceptable alternative solutions to maintaining a soft border in Ireland. They envisage circumstances where the Northern Ireland-only provisions of the backstop are left intact as Great Britain seeks to diverge, re-opening the possibility of customs barriers within the United Kingdom—something that caused great concern at the time of the EU’s original backstop proposal last year, and ruled out by the prime minister again this week. Here parliament could make clear that it would not contemplate this without it first having been consented to by the Northern Ireland Assembly, or without it having been put to the people in a referendum. This would be seen as giving the Unionists a “veto,” but in fact it would be consistent with the bottom-up approach taken in the original Belfast Agreement.

These measures by themselves might not be enough to convince the DUP, but should be seen as part of an overall package. Unionists must be reassured that the Withdrawal Agreement will work for them. This is the logic of the parliamentary arithmetic, but also a necessary balancing act as far as the delicate political situation in Northern Ireland is concerned. This must be followed by further steps to safeguard the rights of Irish citizens in Northern Ireland—a point that was also acknowledged by May in Belfast. It may be that a softer Brexit is still the logical outcome of the government’s current predicament, but the prime minister first has to deal with the realities of party politics.