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A Way Out

A Policy Exchange Brie?ng Note

Lord Bew

About the Author
Lord Bew of Donegore is a Crossbench peer, former Chair of the Committee on Standards in Public Life,
Professor of Irish Politics and author of The Politics of Enmity: The Oxford History of Modern Ireland and The
Making and Remaking of the Good Friday Agreement.

Policy Exchange
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Lee, Charlotte Metcalf, Roger Orf, Andrew Roberts, George Robinson, Robert Rosenkranz, Peter Wall, Nigel
Wright.

2 – The ‘Backstop’ Paralysis: A Way Out

 Summary:
1. The UK Government has allowed the Irish Government to weaponise the
1998 Good Friday Agreement in a way that prevents compromise on the
Backstop. This partial reading of the Good Friday Agreement risks
generating further difficulties for the peace process in Northern Ireland.
2. The Backstop, by placing key areas of North-South co-operation under
the operation of a new regime, without the consent of the Northern
Ireland Assembly, would turn the Good Friday Agreement on its head.
3. Unless the delicate structure of the Good Friday Agreement is preserved,
the current deterioration in North-South relations might intensify in
unpredictable and dangerous ways. Unionists especially could regard the
Backstop as a betrayal.
4. But the opportunity remains for Britain to defend the Good Friday
Agreement and transform the terms of the debate around the Withdrawal
Agreement of 2018.
5. This is because, alongside the Good Friday Agreement, the UK and Irish
Governments signed the British-Irish Agreement of 1998, which pledges
a ‘solemn commitment’ to the provisions of the Good Friday Agreement
in international law. The UK Government must insist that these are
preserved and that the Backstop is made temporary – in explicit and
legally binding terms.

The ‘Backstop’ Paralysis: A Way Out – 3

 The ‘Backstop’ Paralysis: A Way Out
The most remarkable aspect of the UK’s negotiation to leave the EU is the way
in which the British Government has allowed the Irish Government to control
the narrative around the Good Friday Agreement unchallenged. Dublin’s partial
reading is a major obstacle to a compromise on the Backstop and also contains
associated risks for the future of the peace process in Northern Ireland.
There are many heroes of the peace process, from Belfast to Dublin to London.
The then Irish Taoiseach Bertie Ahern in particular deserves great credit for
the way in which, at the very last minute, he softened the Irish negotiating
position in order to get a deal. But also undoubtedly the Good Friday Agreement
represented a triumph of British statecraft, which held the line against
occasional Irish efforts to push the United Kingdom towards positions which
would be unacceptable to the majority community in Northern Ireland. This
permitted a historic compromise between unionism and nationalism in Ireland.
Since then, it has been the uncomplaining British taxpayer which has met the
considerable bills for the maintenance of Northern Ireland. Every single year,
successive UK governments have expended considerable energy on the
objective of maintaining the Good Friday Agreement.
As it is, the Withdrawal Agreement specifies that in the event of social and
economic disorder in Northern Ireland, the UK has a unilateral right to suspend
any aspect of the Backstop which has played a role in generating this disorder.
This is a useful safety valve. But it also reveals how the UK has more skin in the
game than anyone, including the Irish government, and more to lose if anything
were to go radically wrong.
The EU and the Government of the Republic of Ireland, in a largely uncontested
narrative, has managed to turn Northern Ireland into the weakest link in Britain’s
negotiating position over Brexit. However, even now, the opportunity remains
for Britain to defend the Good Friday Agreement and transform the terms of
debate around the Withdrawal Agreement. This is the obvious course for the UK
Government to take.
The Good Friday Agreement contains a number of precise protocols for
institutional development within it. It asserts the control of the Northern Ireland
Assembly – ‘specific endorsement’ is the phrase – over the pace and character of
North-South co-operation. At the very top of the list of co-operation, it places
agriculture and animal health. This means that if there was a proposal to expand
the relationship in such areas of North-South cooperation, the consent of
4 – The ‘Backstop’ Paralysis: A Way Out

 Northern Ireland’s elected representatives must first be obtained. Policy
Exchange previously examined this problem in its report, The Irish Border and the
Principle of Consent.1
As a Remain voter, I have no difficulty in acknowledging the de-stabilising
effects of Brexit on Irish politics and the sense, recently articulated by Mark
Durkan, former leader of the SDLP, that it is a top-down imposition on unwilling
communities, both North and South. But another ‘top-down’ intervention will
not open up a new era of harmonious relations in Ireland.
The Withdrawal Agreement, alas, places key areas of such co-operation entirely
under the operation of a new EU-led regime – a regime which begins from day
one of the implementation of the Backstop. UK government reassurances about
the future miss the point. The damage to the delicate structure of the 1998
Good Friday Agreement would already have been done by the implementation
of the Backstop. This is because regulations, previously within the disposal of
the parties to the 1998 Good Friday Agreement within Northern Ireland, would
be handed to agencies outside their control (see, for example, pages 425-435 of
the Withdrawal Agreement).
The startling effect of this would be that a Good Friday Agreement – created in
1998 to ensure bottom-up consent – would now be replaced by a top-down
arrangment. This would not protect the Good Friday Agreement but subvert it.
As Rt Hon Lord Murphy of Torfaen, a former Northern Ireland Secretary, told
the House of Lords before Christmas, there have been two big failures in the
negotiations: ‘the failure to restore the institutions in Northern Ireland and the
failure of the Brussels negotiations to understand why the principles that
underpin the Good Friday Agreement should have underpinned the negotiations
regarding Brexit borders and the backstop as well.’
The Agreement of 1998 was intended to bring to a close the ‘cold war’ between
North and South. This it has done for many years. Unless we preserve its
template, the current deterioration in North-South relationships might intensify
in unpredictable and dangerous ways. In particular, the unionist population,
which underwent an enormous internal struggle to accept the new North-South
arrangements, is likely to regard itself as having been betrayed on the key point
of compromise in 1998. It will increase their unwillingness to engage in further
negotiations to lead to a return of devolution. The suspicion will be aroused
among them that the Republic of Ireland will have, under the Backstop, a greater
directive power over Northern Ireland affairs. It will take politics in Northern
Ireland beyond the legitimacy of the model agreed in 1998.

The ‘Backstop’ Paralysis: A Way Out – 5

 Fortunately, there is a way out. The Multi-Party Good Friday Agreement of 1998
is supplemented by an international agreement between the UK Government
and the Republic of Ireland,2 the British-Irish Agreement of 1998, in which, in
Article 2, the two governments affirm a ‘solemn commitment to support… the
provisions of the Multi-Party Agreement’ (i.e. the Good Friday Agreement). This
commitment, ‘in particular’, refers to the model for North-South cooperation so
deeply altered by the backstop.
For this reason, the UK Government should say that it has, in international law, a
legitimate expectation that these arrangements should be preserved; ‘pacta sunt
servanda’ – agreements must be kept. 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. In short, the obligations of the 1998 Good Friday Agreement – which
the backstop claims to protect – require that it can only be a temporary
arrangement and this must be put in explicit, legally binding terms.
It is vital that the UK not allow the Republic of Ireland’s government to
unilaterally escape its obligations under the 1998 Good Friday Agreement. It has
done so in the past in relation to international treaties with very negative
consequences. In 1925, Dublin recognised Northern Ireland as part of the
United Kingdom in the Tripartite Treaty of that year. But in 1937, the Irish
Government repudiated this by making a territorial claim over Northern Ireland
in its revised Constitution. Three times during the Troubles, most notably in the
Anglo-Irish Agreement of 1985, the British made massive concessions to secure
something that in international law it already possessed. It is time to act now, so
that the UK does not spend much of the next century, as it spent much of the
last, playing a needless game of catch-up because it failed to insist that the
Republic of Ireland should stand by its international treaty obligations.
In 1998, a Fianna Fail Irish Taioseach Bertie Ahern saw the need for a genuine
compromise and achieved an enduring place in history – securing Ireland’s most
important interests along the way. It could be that a Fine Gael Taioseach, Leo
Varadkar – himself something of a symbol of the new Irish Republic – may wish
to emulate him over the coming days and weeks.

6 – The ‘Backstop’ Paralysis: A Way Out

 Endnotes

1
2

https://policyexchange.org.uk/publication/the-irish-border-and-the-principle-of-consent/
https://www.britishirishcouncil.org/about/british-irish-agreement

The ‘Backstop’ Paralysis: A Way Out – 7