Friday 24 May 2019

Dan O'Brien: 'The backstop demand could end up bringing about that which it was designed to prevent'

Prime Minister Theresa May makes a statement in 10 Downing Street, London, after she survived an attempt by Tory MPs to oust her with a vote of no confidence. Photo credit: Victoria Jones/PA Wire
Prime Minister Theresa May makes a statement in 10 Downing Street, London, after she survived an attempt by Tory MPs to oust her with a vote of no confidence. Photo credit: Victoria Jones/PA Wire
Dan O'Brien

Dan O'Brien

How hard you push those you bargain with is central to the art of persuasion and negotiation. Twenty-five years ago this week one of the most important bargains in the history of this island was reached. The Downing Street Declaration cleared a pathway towards politics for those who had sought to get their way by violence and intimidation.

That declaration insisted that those who used violence would have to stop killing if they were to be included in the political process. But it did not demand that they surrender all their weapons in advance as a condition. Such a condition would have been just and fair - allowing killers to hold onto their guns gave them the power to threaten to walk away from the table if they didn't get what they want and go back to violence.

But neither the Irish nor British government put this demand on the table. They did not seek it because they knew the IRA and Sinn Féin would never accept those terms. At the very least, the provisional movement would have split. At worst, the violence could still be going on today.

Most of us are familiar with negotiating in much less dramatic contexts, whether it is haggling for a trinket in a foreign bazaar or buying a house. Experience tells us that if you insist on a price you know the other side will not accept the chances are that you will end up with no deal.

Thirteen months ago the Irish and EU side in the Brexit negotiations placed a new demand on the table. What has become known as the "backstop" was designed to ensure that the Border on this island would undergo absolutely no change under any circumstances in the future. This would involve, if the backstop as it now stands was ever used, Northern Ireland leaving the UK's single market and staying in the EU's single market.

Despite claims to the contrary, this has constitutional implications. The regulation and adjudication of markets are at the core of the infrastructure of state. It is for this reason that Ireland had a constitutional referendum to join the common market in the 1970s and another constitutional referendum to join the single market in the 1980s.

For Northern Ireland to exit the UK's single market would amount to a constitutional change. Among other things it would leave the citizens of Northern Ireland disenfranchised - they would be subject to laws made at the EU level but without a vote in European Parliament elections and without representation in other EU institutions.

Because of the constitutional implications for the UK, it was inevitable that there would be strong opposition from across the spectrum of British politics to the backstop. The scale of the opposition was to be seen this week when Theresa May U-turned spectacularly on putting the EU withdrawal deal to a vote in the House of Commons. And it was not just many Conservatives who oppose the backstop. The leader of the Labour Party, Jeremy Corbyn, said this week that if he were in charge "there certainly wouldn't be a 'backstop' from which you can't escape".

There was always a risk the backstop would bring about a no-deal Brexit. A no-deal outcome would be a disaster for Ireland on multiple levels. It would place Ireland in a position of policing the Republic's side of what will be an external frontier of the EU, or not policing it and ending up having French, Belgium and Dutch customs officials treating Ireland like a non-EU country.

A hard deal would also inflict maximum economic disruption to east-west trade. That includes the imports which keep production lines in Irish factories rolling.

It also includes the food on supermarket shelves. Ireland may be a net exporter of food, as the Taoiseach stressed on last Friday's 'The Late Late Show', but the headline figures mask a more vulnerable position.

Irish farmers specialise in beef and dairy. Exports of these products massively exceed imports. But the opposite is true for many important foodstuffs. Among these are cereals, such as flour, and vegetables, including potatoes (last year the value of potato imports was 20 times greater than exports, according to the CSO). Much of the food that is imported either originates in Britain or travels through it from the continent.

Shortages of some foods are a future risk. Some of these negative outcomes of the backstop have already materialised. Political unionism - both the anti-Brexit Ulster Unionist Party, as well as the DUP - is opposed to the backstop. Putting it on the table has increased suspicions among some unionists that the Irish Government is attempting to "annex" the North. A LucidTalk poll from earlier in the month showed 69pc of unionists opposed the backstop proposal.

The backstop has also increased hostility towards Ireland in Britain. In recent days resentment in Westminster has become more public. If the pro-Brexit wing of the Conservative Party ever takes power there will be people looking to settle scores with Ireland. And even though Theresa May survived her leadership challenge last evening, almost all current leadership candidates waiting in the wings are Brexiteers. One of them could well be in Downing Street before too long.

Those who came up with the backstop misread British politics and the British, placing a demand on the table that could end up bringing about that which it was designed to prevent.

If there has been light from the chaos of the past few days it came from lawyers in Luxembourg. Last Monday morning's confirmation by the EU's de facto supreme court that Britain can take back its notice to leave the bloc at any time before March 29, and do so without consulting other member countries, offers a possible route back to some sort of stability. Something resembling a consensus may emerge around exercising that option. Let's hope that happens because the alternatives are looking either unlikely or appalling.

Irish Independent

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