Brexit backstop: what is the ‘freedom clause’?

Tory rebels say they could support Theresa May’s deal if Irish backstop removed

Boris Johnson and Theresa May at this year's Nato summit
Boris Johnson and Theresa May at a Nato summit in Brussels last year
(Image credit: Matt Dunham/AFP/Getty Images)

Prominent Tory rebels are shifting their support behind Theresa May’s Brexit deal on the proviso that she demands the removal of the Irish backstop or adds a so-called freedom clause.

Writing in The Daily Telegraph, Brexiteer Boris Johnson claims the prime minister is now committed to getting rid of the backstop.

“I have heard it from the lips of very senior sources in government – speaking with the authority, it is claimed, of the prime minister herself – that this country is about to seek proper binding legal change to the current lamentable withdrawal agreement,” says the former foreign secretary.

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“If we mean it, if we really try, I have no doubt that the EU will give us the freedom clause we need. And if the PM secures that change – a proper UK-sized perforation in the fabric of the backstop itself - I have no doubt that she will have the whole country full-throatedly behind her.”

Johnson’s intervention suggests that he is prepared to back a Commons amendment tabled by Sir Graham Brady, who chairs the Tory backbench 1922 Committee, calling for the scrapping of the Irish backstop.

This amendment “requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border” - wording that is considered sufficiently precise yet vague to win the support of the Democratic Unionist Party (DUP) and many Eurosceptic Tory MPs.

Brady “has been shrewd enough to be flexible”, says HuffPost’s Paul Waugh.

The MP told BBC Radio 4’s Westminster Hour: “You wouldn’t have to open up the withdrawal agreement. You could do it through a legally binding codicil to the withdrawal agreement…I think the crucial thing is that it’s a legally-binding change that makes it clear the UK can never be trapped in the backstop in perpetuity.”

But Johnson implies that a codicil, or some other form of legally binding addendum to the withdrawal agreement, would not be enough. He says the withdrawal agreement would have to be re-opened, to allow the insertion of what he calls a freedom clause.

“If she can put in that Freedom Clause or Clauses - and be in no doubt, this means reopening the text of the treaty itself - then we have defused the booby-trap,” Johnson writes.

Anything less than an “intention to change the treaty” would be “a smoke and mirrors job”, he adds.

Speaking on BBC Radio 4’s Today programme, Brady said that if passed in a vote on Tuesday, his amendment would give “enormous firepower” to the PM when she returns to Brussels by setting out what Parliament would back.

Asked if the amendment had government backing, he said: “I hope so... I don’t know so. The amendment was born out of a number of conversations I had with colleagues including members of the Government, including the prime minister.”

The main sticking point remains the EU’s refusal to reopen the withdrawal agreement or to put a time limit on or remove the backstop. This refusal has been underlined by Irish deputy PM Simon Coveney, who said this weekend that there would be no changes to the agreed plan.

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Downing Street has not said yet how it will instruct government MPs to vote on Brady’s amendment, but both the Daily Mail and The Sun report that No. 10 is poised to back his plan.

If May were to formally endorse it, that “would amount to the Government saying it now wants to replace the backstop that it signed up to”, says The Guardian’s Andrew Sparrow.

Health Secretary Matt Hancock told Sky News: “The impulse behind those who supported the Brady amendment I entirely understand and we need to look for a pragmatic solution.”

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