Regular readers of this blog will know that I have been a lonely voice over the past 15 months expressing concern over the Irish government’s steely ‘ not an inch’ strategy over the so-called ‘backstop’, the insurance policy to ensure there will be no hard border caused by the British withdrawal from the EU.
My motivation was a relatively narrowly-focused one, based on concern that the relationships that are so vital to maintaining peace and ensuring progress in the North – between the Irish and British governments, and between the former and the DUP – are not damaged in the fall-out from Brexit. However I was also impressed by the arguments of economist and Irish Independent columnist Dan O’ Brien, who argued that the negative effects of a no-deal Brexit were likely to be greater for Ireland than for Britain, for two main reasons: firstly, Ireland is more than three times more dependent on trade with the rest of the world than the UK is; and secondly, Irish exports to the UK relative to the size of our economy are greater than UK exports to the whole of the EU relative to the size of their economy.
I have to say that two and a half years after the Brexit referendum vote, relations between Dublin, London and Belfast seem to me worse than they have been for most of the past 30 years. The Irish government’s unwavering insistence on the backstop has contributed to this. In Britain the backstop has emerged as the most hated element in Theresa May’s draft Withdrawal Agreement, overwhelmingly rejected by the House of Commons. The danger has now become that if the backstop precipitates a no-deal Brexit, we will end up with the very border the backstop is designed to avoid.
I am no expert on the witches’ brew that is Brexit. But I hope I am not mistaken in seeing a small chink of light in the chaos and darkness that surrounds this issue five weeks from a possible no-deal ‘crash out’ on 29 March. The light comes from reading recent articles by two leading Irish journalists and a Northern Irish commentator.
This is complex stuff, so please bear with me. One has to start with the superbly well-informed RTE Brussels correspondent, Tony Connelly. In a blog earlier this month¹ Connelly sketched the outline of a possible deal between London and Brussels. He says the British side accept that weaving a way through the tangle of fiendishly complicated issues will not be easy, especially given that Ireland and the EU are adamant that the Withdrawal Agreement cannot be re-opened nor the backstop changed.
Therefore the new emphasis is on “re-balancing” so as to remove the “trap” which the British fear, because it is part of the legally binding Withdrawal Agreement, will keep them in the backstop, and therefore the Customs Union, indefinitely. The Political Declaration,which will point the way towards the future UK-EU trade relationship and thus provide a pathway for the UK out of the backstop, is non-binding. There need to be further assurances “to re-balance this asymmetry between the political commitments and the legal text”, one British source told Connelly. The lawyers, with their versatile use of language, will play a key role here, notably UK Attorney General Geoffrey Cox.
The British want a time limit or an exit clause from the backstop to act as real incentive for both sides to push hard and soon towards a “frictionless” future trade deal, which would remove the risk of a hard Irish border, and therefore the need for the backstop. There is a fundamental dilemma for the UK here: it needs a high level of customs and regulatory alignment in order to keep the Irish border as invisible as possible, while wanting the freedom to negotiate its own trade deals around the world. The British, not for the first time, are pushing for two regulatory spheres, side by side, similar but not identical, but with an ambiguous degree of compliance and enforcement (ambiguous because they don’t want the European Court of Justice as the sole arbitrator of whether or not the Irish border remains invisible and whether customs rules can be waived at their borders). So far the EU have resisted this idea.
Connelly says the British side admits that such “parallel tracks” are complex, but “amid the fog of where we go next, this seems to be the plan.” A key element will be finding “a way through this that Dublin feels comfortable with”, one Brussels source told him. “We have to try and disentangle the longer-term commitment to no hard border and this particular set of arrangements.”
The Irish government has rejected any time limit or exit clause as rendering the backstop insurance policy meaningless. Perhaps they will have to climb down a little. The sometimes erratic Irish Times Northern commentator, Newton Emerson, has argued – correctly in this instance – that the backstop would not come into effect until the end of the transition period on 31 December 2020, a deadline which EU chief negotiator Michel Barnier has said could be extended for up to two years.² This could take a five year backstop (which Emerson suggests would be acceptable to the DUP) to the end of 2027, nearly nine years away. “Is the Irish government seriously suggesting that finding a way around a hard border would take nine years to negotiate with a Withdrawal Agreement in place?” he asks.
The former Irish Times political correspondent, Stephen Collins, always a knowledgeable and sensible voice, says “it is clearly in the interests of the UK, Ireland and the EU that the backstop should not prevent them from getting the kind of Brexit that would suit them all.”³ He says “a legal instrument clarifying the meaning of that [Withdrawal] Agreement as it relates to the backstop is being touted as the way around the problem.”
He believes “some redefining of the backstop would boost the chances of a reasonable deal being accepted” by the House of Commons. To get it through the Commons, any legal clarification would be sold as a significant success by the British government. He goes on: “While it would obviously be difficult for the Irish government and the EU to bite their tongues in that scenario, it would be in both their interests not to be too blunt. If the British want to foster a perception that the backstop has been changed, even if any clarification only amounts to a restatement of the obvious, so be it. While there may be some political difficulties for the Irish government in appearing to accept a compromise, it would be much more dangerous in the longer term to become wedded to a hardline stance for fear of losing face. In the coming weeks Taoiseach Leo Varadkar will have to be careful not to say or do anything to block off possible avenues of retreat for the British.” He concludes: “Knowing when it is time to pull back, or at least give the appearance of doing so, will be the real test of whether he has what it takes to be a statesman.”
If we don’t find some way to make the politics of compromise work in the next five weeks, we are facing not only a probable economic cataclysm in both our islands, but possibly seeing our neighbouring state in the hands of leaders with the deepest hue of reactionary politics: serial liars and charlatans like Boris Johnson and snooty far-right eccentrics like Jacob Rees Mogg. It is a terrifying and deeply depressing thought.
¹ ‘Hell, high water and the return of Chequers’, 9 February
² ‘There is a backstop deal to be done’, 24 January
³ ‘De Valera’s empty formula could solve UK’s Brexit impasse’, 21 February