The Irish backstop problem is starting to become a big issue in the Tory party and the DUP. There is a developing nervousness that it may be the immovable road block to Brexit. A man named Lee Reynolds, a DUP councillor on Belfast City Council, has written a predictable article for Conservative Home website (HERE) trying to get Brexit out from under the backstop conundrum, basically with an explanation of why a hard border isn't actually proscribed by the Good Friday Agreement and why the return of border posts wouldn't be a problem anyway. There is a lot of support in the comments section for Mr Reynolds' point of view and technically and probably constitutionally, he's right. Installing a hard border wouldn't specifically breach anything written in the GFA.
But there are two difficulties. Firstly, the UK government's Position paper (HERE) on the Irish border published last year, has an entire section (3) on avoiding a hard border for goods. It explains that this is a shared objective of both the British and Irish governments. Note these quotes:
"The invisible and open border between Northern Ireland and Ireland is, as the Irish Government has said, arguably “the most tangible symbol of the peace process”.
"During the ‘Troubles’, customs posts were frequently the subject of bombing attacks. Border crossings and checkpoints were manned by a very substantial military and security presence, including a series of ‘watchtowers’ in border areas, and a number of border roads were blocked by the security forces adding to the disruption created by the approved road network. The Belfast (‘Good Friday’) Agreement included a specific commitment to “the removal of security installations”. All military security installations and other infrastructure were removed following the Agreement and the border today is invisible and seamless across its 310 mile/500 km length. As the Irish Government has said, “the disappearance of physical border crossings and checkpoints is both a symbol of, and a dividend from, the success of the peace process”.
From the Prime Minister’s Article 50 Letter:
“In particular, we must pay attention to the UK’s unique relationship with the Republic of Ireland and the importance of the peace process in Northern Ireland. The Republic of Ireland is the only EU Member State with a land border with the United Kingdom. We want to avoid a return to a hard border between our two countries, to be able to maintain the Common Travel Area between us, and to make sure that the UK’s withdrawal from the EU does not harm the Republic of Ireland. We also have an important responsibility to make sure that nothing is done to jeopardise the peace process in Northern Ireland, and to continue to uphold the Belfast Agreement”.
From the Irish Government Priorities:
"The [Irish] Government has made clear its priority that there be no visible, ‘hard’ border on the island of Ireland. This will require a political and not just a technical solution, as well as recognition that the land border on the island represents a unique and unprecedented set of circumstances.
So, avoiding a hard border may not be a strictly legal requirement but the Police Service of NI are clear, a hard border risks the return of violence. If that happened, the GFA prevents any security installations being built. It's really a political requirement that is if anything even tougher to break than a legal one.
Secondly, the prime minister signed up to the backstop as the insurance policy against a hard border in the Joint Report last December. She cannot repudiate it and continue to negotiate with the EU.
And finally, as the EU have repeatedly made clear there cannot be a withdrawal agreement (and therefore no transition period and no free trade agreement) unless a backstop is agreed in legally binding text.
People like Lee Reynolds can write all the articles they like but it won't make any difference. We cannot leave without a deal, if the EU didn't know it before today the NAO report (HERE) makes it absolutely clear. We are not ready. The PM might have been persuaded to plunge the nation into chaos next March 29th if the referendum result was 90% leave. But with a narrow majority for leave, now almost certainly gone she (and we) cannot afford a hard Brexit next year and the UK government will have to swallow many bitter pills between now and next March.
