Tuesday 25 June 2019

Dan O'Brien: 'The backstop has brought down May - and it will bring about a no-deal Brexit'

The backstop has destroyed Theresa May. Offering to time limit it may be the only way to prevent a no-deal Brexit, says Dan O'Brien

'Even if Leo Varadkar wished to offer a concession on the backstop, so much political capital has been invested in it by EU leaders that backing down would be resisted, by some at least.' Photo: Tony Gavin
'Even if Leo Varadkar wished to offer a concession on the backstop, so much political capital has been invested in it by EU leaders that backing down would be resisted, by some at least.' Photo: Tony Gavin
Dan O'Brien

Dan O'Brien

Theresa May's successor will almost certainly be a stronger advocate of Brexit than she is. Nor is the next British prime minister likely to be any better disposed towards Ireland.

That means, among other things, that the nationalist community in the North faces the prospect of living in a state in which English nationalism is on the rise and embodied in the leader of the UK. If clear favourite Boris Johnson takes the role, both parts of this island could face real trouble.

The Government, and the Taoiseach in particular, need to rethink their approach to Brexit to take account of the changed situation. All plausible scenarios need to be considered. The worst-case scenario, which is very bad, needs deep consideration.

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Honesty about how the current juncture has been arrived at is also needed. Mrs May was, above all, the victim of her own ineptitude. She misread her party and her fellow EU leaders at almost every turn. She miscalculated unerringly. She communicated abysmally.

Her greatest mistake was to fail to see how the backstop would play out. In the 18 months since the Irish and EU side put the backstop on the Brexit negotiating table it has dominated both the talks and British politics. It is the reason the current impasse has been reached.

The Withdrawal Agreement May signed up to with the EU dealt with only three substantive issues. Of these, neither Britain's exit bill nor the matter of the rights of EU citizens living in the UK and vice-versa was a deal-breaker. It was the third issue - the Northern Ireland backstop - which Westminster refused to swallow over three separate votes. May's attempt last week to bring it back to parliament - yet again - led to the evaporation of whatever authority she had left. By last Friday she was forced out.

There should be no surprise the backstop has created such a furore. If it were ever to take effect it would change the status of Northern Ireland, taking it out of the UK's single market and tying it to the legislative and legal order of the EU.

This is a perfectly good technocratic solution to ensuring that there can never be any change whatsoever to the way the Border on this island works. But solutions designed by technocrats, who sometimes have limited appreciation of the wider consequences of their proposals, can turn out badly. The European Commission's failure to see the risks of bringing Ukraine closer to the legislative and legal order of the EU's single market in 2014 was such an error.

The risk that the backstop would bring about a crisis, and lead inexorably to a no-deal Brexit with all its damaging consequences, was always considerable. Demanding that there be absolutely no change to the Border for all time, and claiming that any change whatsoever was a catastrophe for the Good Friday Agreement, were high-risk positions to take. The later position also came with the downside that any appearance of compromise could be construed as putting peace at risk. Painting oneself into a corner when the stakes are so high is never a good idea.

The backstop gambit was not only risky. It also came with costs. On this island it has deepened division and distrust between the two traditions. Though it may be an inconvenient truth which is simply ignored south of the Border, political unionism is united against the backstop. It is not only the dunderhead element in the DUP which sees it as an attempt to annex the North.

In a speech last weekend, Danny Kennedy, the Ulster Unionist Party's candidate for the European Parliament election said: "Unionist concerns around the backstop are just as valid and are afforded equal protection under the Good Friday Agreement as those of our nationalist neighbours about a hard land Border."

His party, which opposed Brexit in the 2016 referendum, argues with impeccable logic that because the backstop involves changing the status of Northern Ireland without the consent of its people, it is a breach of the Good Friday Agreement. One of the tragedies of Brexit is that it was always going to unsettle the North's fragile political arrangements, no matter what the outcome.

Despite the damage it has already caused and the growing likelihood that it will bring about a no-deal Brexit and a Trumpian prime minister in London, the Irish and EU position is that the Withdrawal Agreement concluded with Mrs May is the only way Britain can exit the EU smoothly. The private positions of diplomats from across the EU are as strong on that point as the public positions of their governments.

As such, the Government has limited reason to fear a loss of support from the rest of the EU 26 as the next cliff edge approaches on October 31. Its greater problem may be the exact opposite. Even if Leo Varadkar wished to offer a concession on the backstop, so much political capital has been invested in it by EU leaders that backing down would be resisted, by some at least. Backing down to Boris Johnson, when they would not do so for Theresa May, would generate even more resistance.

Finding a compromise has proved so difficult because Northern Ireland can only be in one market at a time. Binary choices are always hard to deal with in any negotiation. With opinion in Britain so polarised on the backstop issue, things have gone from bad to worse.

The most obvious change to the Withdrawal Agreement that could change the dynamic in Westminster is to time-limit the backstop. A five-year limit, combined with the current transition period up to the end of 2020, would guarantee zero change to the Border until 2025. A lot could happen in six-and-a-half years, including a united Ireland. If the alternative is a no-deal Brexit in five months, which would, among many other bad things, mean a hard Border immediately, then it may be the least bad outcome from this whole fiasco.

As this column has argued before, a greater role for the Irish Government in guaranteeing rights in Northern Ireland could be sought in return for such a concession. That could help assuage the legitimate fears of the nationalist community.

Giving the people of Northern Ireland a choice in a referendum on whether they want to be in the EU's single market or the UK's single market is another option. Such a vote would certainly be divisive, but it would ensure that the principle of consent in the Good Friday Agreement is respected.

It may be that all of this is unnecessary. If prime minister Johnson backs down on his pledge to renegotiate the backstop and then gets Mrs May's deal through parliament, the huge gamble that is the backstop will have paid off.

But that is looking less likely than ever. The backstop has already contributed to the polarisation of British politics and the deepening of divisions on this island.

Sticking to it rigidly appears more likely than ever to bring about a no-deal Brexit. The consequences of that will be dire.

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