'A backstop with a time limit ceases to be a backstop," Minister of State for European Affairs Helen McEntee said on Monday, ruling out a suggestion at the weekend by her predecessor, Lucinda Creighton, that the Government might have to accept a five-year limit.
In practice, the limit would be more than eight years, as it would not start until the end of the transition period, which under the existing withdrawal agreement can be extended to the last day of 2022. Speculation on a limit has always cited a figure of five years, taking the deadline to have alternative arrangements in place up to the end of 2027.
At first sight, this has become an argument Ireland is having with itself. Boris Johnson also ruled out a time limit while campaigning to become Britain's prime minister in July. He continues to dismiss the idea, insisting the backstop must be removed from the withdrawal agreement entirely. That is a much harder stance than taken by the DUP, which has long been prepared to accept a time-limited backstop and was reportedly still urging this on Johnson four weeks ago, citing a period of three to six years.
Unilateral exit clause
Johnson also ruled out a unilateral exit clause in July. However, his letter to the EU earlier this month proposed “a legally binding commitment” by the UK not to impose “infrastructure, checks or controls at the Border”. He also offered a commitment to have as many alternative arrangements as possible in place by the end of the transition period, plus yet another commitment to ensure “confidence about what would happen if these arrangements were not all fully in place at the end of that period”.
Take these promises together and they add up to another Northern Ireland backstop. The letter precludes membership of the customs union and single market . However, only extensive alignment with EU rules can avoid a hard border while introducing alternative arrangements – a process Johnson concedes would run past the transition period.
At some point in the future the completeness of this process would have to be judged, with the UK seeking the right to make that judgment on its own. Any time frame for this decision amounts, in effect, to a time limit.
How would the decision be taken? It seems obvious there would have to be a vote in a reconvened Stormont, or else a Northern Ireland-only referendum. This would be in line with the rest of Johnson’s letter, which placed great weight on consent and democratic accountability within Northern Ireland.
The Assembly debate or ballot question would be: has the Border been rendered acceptably frictionless and all other Brexit issues acceptably painless? If the answer is no, reversing to something closer to the original backstop could be the fallback position.
A referendum in the North has been increasingly mentioned from the Conservative backbenches, although only to vote on enacting the backstop, rather than to deliver a final verdict on alternative arrangements – an endstop referendum.
‘Stormont lock’
Johnson's predecessor, Theresa May, proposed a so-called Stormont lock, to eventual DUP approval, giving the Northern Ireland Assembly a say on leaving EU alignment, one diverging regulation at a time. A final Stormont vote on exiting Johnson's de facto backstop would, in principle, be just one last turn of the key.
While this is purely speculation on my part, logic points to it and it is fascinating to consider the effect it might have on Northern Ireland politics.
A backstop referendum is considered unwise to the point of foolishness in official circles because it would turn into a proxy Border poll.
But if it was scheduled for the end of 2027, a timescale on which a Border poll could happen regardless, unionists might find it a preferable alternative and be strongly motivated to find arrangements nationalist and centrist voters could live with. Nationalists might prefer it as well, as a vote on remaining within the EU’s orbit is one they are more likely to win.
The Stormont lock is considered a poisoned chalice by many in Northern Ireland as it would turn every debate on regulation into a constitutional tussle. However, that happens in almost every Stormont debate. If the Executive and Assembly were focused for almost a decade on a final verdict for their Brexit efforts, rather than fighting a series of dry little technical battles, there is a chance they might find some common ground. Every party claims to want an open border.