Why Tories should relax and learn to love the backstop

Despite its flaws, the withdrawal deal delivers much of what the country demands from Brexit

Is this how it ends? Sir Christopher Chope MP and a band of brothers on a hill, deciding bravely to knife their own side in the back.

It’s a measure of how desperate things are among the Brexiteers that, this week, the hard-liner Sir Christopher actually floated the idea of casting his lot with Labour and collapsing his own party’s Government in a no-confidence vote.

His reasoning seems to be that, since the exit day of March 29 is currently enshrined in legislation, collapsing the Government could stop the legislation from being amended between now and then, making Brexit a legal fact. This madcap plan is a non-starter, because even an interim Prime Minister can still delay Brexit.

But a few others also insist no deal is still on the table. Steve Baker MP says he would never bring down a Tory government, but intimated on ITV that there are “things we could do” to prevent Parliament altering the law. John Redwood MP argues that Parliament’s inability to agree to whatever conditions the EU demands for extending Article 50 will make it difficult to remove the March 29 date from statute.

For the most part, however, Brexiteers are realising the game is up. Short of a wildcard veto by Hungarian leader Viktor Orban or a demand that Britain hold a second referendum (a level of chutzpah that I doubt even Brussels can muster), there is now little the EU could or would do to stop Parliament from completing the steps necessary to extend Article 50.

The Government has made clear its intention to obey the House, as was always likely. The question is what it uses this extension for: to pass the current deal, or succumb to a newer, ultra-soft one?

The fate of Brexit and the current deal now lies with the DUP and Labour backbenchers. If No 10 can win over the hardest of hard-line unionists, most of the Tory holdouts will follow, perhaps thinning the rebels’ ranks enough for independentminded Labour MPS like Lisa Nandy and Caroline Flint to plug the gap.

Operation DUP has three prongs. There is the promise of more cash for Northern Ireland. There is a potential commitment, to be enshrined in law, that Great Britain won’t diverge from the EU on certain regulations while the backstop is in place, avoiding the need for extra checks on the Irish Sea. And there is the Attorney General’s attempt to present his legal advice in a way that looks more appealing.

In Government, there is considerable anger over the handling of Geoffrey Cox’s crucial letter earlier in the week. One Cabinet minister condemned the “total incompetence” of giving him just a few hours overnight to digest the tweaks to the withdrawal deal and update his advice when so many votes were riding on it.

Still, the legal argument that sprung up in its wake, with senior lawyers disagreeing over Britain’s ability to exit the backstop, shows the issue is less clear-cut and somewhat more favourable to the UK than it was before. One senior Eurosceptic believes the DUP “would like to waver”.

They have good reason to. If the Government’s deal doesn’t pass next week, Brexit will only get softer – and the backstop won’t disappear. Once we enter a long Article 50 extension, the taboo is broken.

In theory, this leaves all options open and could allow a fresh probrexit prime minister to harden Britain’s position. But in practice, it will only delay Mrs May’s departure as pro-remain Tories hunker down, while injecting new energy into Parliament’s hard-line Remainers and the second referendum lot.

As one pro-brexit MP, wavering on the deal, frets: “The authority of the referendum result is constantly decaying.”

The alternative option of accepting the current deal, despite its flaws, has clear advantages. The argument over the deal so far has mainly centred on how the UK will get trapped in the backstop, removing all our bargaining chips for the next stage of the negotiation.

This is entirely the wrong way to think about it. Instead of loudly denouncing the backstop and begging the EU for a trade deal to replace it, we should be running headlong towards it.

There are two reasons for this, one practical and one political. The practical reason is that the backstop delivers a huge swathe of Britain’s Brexit demands. It ends free movement, fully removes fish, farming and services industries (the last being 80 per cent of GDP) from the EU, ends all EU budget payments and massively reduces the jurisdiction of the EU courts over this country.

It’s true that any guarantees made to the DUP over regulatory alignment will limit some of these newfound freedoms, but only insofar as they affect the tiny volume of goods sold from Great Britain to Northern Ireland each year (0.5 per cent of GDP).

Aside from delivering this enormous expansion to the UK’S independence, the backstop also has a huge amount of political potential.

The EU’S worst fear is that the UK takes full advantage of its freedoms, setting an example to disaffected members like Hungary and Italy of a country able to control immigration, cut taxes and escape Brussels’ federalist creep, while enjoying a low administrative burden to trade. We could deregulate desirable areas of investment management, sign a broad new memorandum of understanding on services regulation with the US and remove all French boats from our fishing waters.

Meanwhile, insofar as Britain engages seriously in any future trade negotiations with the EU, we should use the backstop as a template and focus on removing its two biggest problems: the customs union (which we can only exit once a deal is struck on the Irish border) and the deal’s legal governance.

There is potential for European courts to use certain aspects of the agreement as a lever to expand their jurisdiction once again into the UK. If the EU refuses to negotiate on this issue or let Britain leave the customs union, the UK should simply settle into the backstop and become a right royal pain in the backside.

Rather than risking everything on a long Article 50 extension, Brexiteers should stop worrying and learn to love the backstop. It’s not where they wanted to be, but it still leaves us with cards to play. And if they won’t, they will simply allow the hard-line Remainers to keep gaining momentum.

One pro-brexit MP, wavering on the deal, frets: ‘The authority of the referendum result is constantly decaying’