Is the Backstop a Red Line Too Far?

Guest post by Etain Tannam, Trinity College Dublin. This article is part of an ongoing blog series ‘Brexit Countdown’ by the Political Studies Association of Ireland (PSAI) and the Political Studies Association (PSA).

In Ireland there is a broad consensus that the Irish government has been remarkably successful in advocating for the necessity of a soft border and of protection of the Good Friday Agreement. The EU’s commitment to those aims and its loyalty to the Irish government in prioritizing Northern Ireland reflected a concerted lobbying effort from Irish politicians and diplomats that began almost immediately after the June 2016 Brexit referendum. However, obviously not everyone in the UK would agree with the Irish consensus and indeed one Irish commentator, Dan O’Brien, has argued that the backstop was misconceived and has boxed the EU into a corner, while never having had any chance of being accepted by the UK government. In other words the criticism of the UK government that it entered the Brexit negotiations with too many red lines that were non-negotiable could be applied to the Irish government about the backstop.

The arguments against the use of the backstop are that it was a strategic mistake: it was absolutist and had such large constitutional implications as to make it unacceptable to a majority of politicians in the UK. O’Brien states that ‘there is a big difference between devolving powers to a region on issues like abortion and tax rates on the one hand and, on the other, placing a region in the market of another jurisdiction’. He continues: ‘One of the extraordinary things about it is how little questioning there has been about the costs and risks of what has been one of the biggest foreign policy decisions in the State’s history’. According to O’Brien, either the UK government, or the EU and Irish government will have to do a u-turn and there is no leeway for a non-zero sum outcome that typifies stable bargaining outcomes.

This author found the above critique of the backstop brave in an Irish context and stimulating, but also parsimonious. As regards constitutional differences, the consociational Good Friday Agreement is in marked contrast to the rest of the UK’s system and while its powers are not akin to those of the EU in the Single Market, it is nonetheless of fundamental constitutional significance. Therefore, it is not unimaginable that the backstop provisions could be accepted in the UK, where Northern Ireland was not thought about at all until the Irish government succeeded in ensuring that it would be central to the Brexit negotiations. Indeed, many of the ERG group appear to put English nationalism before maintaining the Union.

Secondly, there are possible paths of compromise even with the backstop. The Democratic Unionist Party (DUP) seeks more of a say for Northern Ireland in the future EU-UK decision-making process and that appears to be one of the bargaining chips being used at present, although the Irish government has stated its opposition to any DUP veto over decisions. In addition, the Political Declaration could be revised to move the EU-UK negotiations swiftly on to agreeing a future beneficial trade relationship, thereby almost making the backstop and the future relationship part of one package as the UK government wanted all along. This would signify compromise, but not of the backstop. It would also render the backstop redundant if a rich and open trading relationship was ensured.

In other words there are imaginative solutions possible to reach an orderly withdrawal deal, especially as the UK parliament has voted by majority against a no-deal Brexit in any circumstance and has also voted for an extension of negotiations.

Finally, though counter-factuals are always speculative, what would have been the outcome in the absence of the backstop issue? The most likely scenario is that the negotiations would have occurred simultaneously as the UK government wanted. In other words, rather than the future relationship being negotiated only after the withdrawal agreement had been agreed, the border issue would have been discussed simultaneously with the future trading relationship. This ostensibly makes good sense. However, from the start the Irish government opposed the simultaneous approach on the basis that the UK government would use the Northern Irish issue as a pawn to gain trade benefits from the EU while not staying in the Single Market. It already seems a long time ago since Boris Johnson referred to ‘the cake and eat it’ approach, but it was in that context (and before Boris Johnson flagged it) that the Irish government was insistent on sequential negotiations.

These Machiavellian suspicions were not un-founded. Northern Ireland did not feature at all in the run up to the Brexit campaign. This author remembers watching BBC Newsnight’s analysis of the regional implications of Brexit and waited in vain for a full discussion of Northern Ireland.

It did not feature after the referendum either until Sinn Fein called for a border poll and the Irish government became more vocal. Even after the EU stated that Northern Ireland and the Good Friday Agreement would be key bargaining priorities, there were many voices heard in the UK who believed that the EU’s commitment to the backstop would not hold and that agreeing a suitable ‘divorce bill’ was more important.

In fact what O’Brien calls an Irish mis-perception that some people in Britain did not know or did not care about Northern Ireland does not seem very far off the mark. The significance of a hard border in re-opening old wounds and increasing insecurity did not seem to be appreciated by many in the UK media and establishment. Again in that context, the Irish government’s firm and consistent commitment to the backstop seems sensible – the soft border could easily slip down the agenda and could easily be sacrificed in a complex bargaining situation unless it was clearly prioritised as a red line.

So is the backstop a red line too far? Clearly this author could be accused of the same ‘group think’ noted by Dan O’Brien, but when faced with the chaos of Westminster, the lack of regard shown to Northern Ireland from early on and the UK’s weak engagement with the Irish government, it is difficult to see how any other course of action would have concentrated UK minds on the need for peace and stability in Northern Ireland. But time will tell.

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Dr Etain Tannam is associate professor International Peace Studies, Trinity College Dublin and is editor of ‘Beyond the Good Friday Agreement’, 2018 (London Routledge), and is currently writing a book ‘British-Irish Relations in the 21st Century’, (Oxford, Oxford University Press, 2020, forthcoming).

 

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