Tuesday 15 October 2019

Dan O'Brien: 'The backstop is dead and the no-deal Brexit looms'

Britain was never going to swallow the backstop. Irish commentators should stop banging tribal drums, writes Dan O'Brien

Cartoonist: J. White
Cartoonist: J. White
Dan O'Brien

Dan O'Brien

Britain did not swallow the Irish border backstop. The massive rejection by Westminster of the EU Withdrawal Agreement containing the backstop reflects well on none of the participants in the Brexit fiasco. That includes the Irish Government.

The 14-month-old backstop sought to ensure that, despite Britain's exit from the EU and its enormous implications, there could never be any change whatsoever to how the Border on this island functions. One of the many reasons Brexit presented a strategic nightmare for Ireland was that it would inevitably change how the two jurisdictions on this island interact.

Absolutism in the face of the inevitable is rarely a wise position to take. Demanding of the British that there be absolutely no change to border arrangements was always more likely to bring about the hardest and most damaging form of Brexit than it was to preserve the status quo.

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Despite this, absolutism on border issues has been the position of the Government since November 2017 when the backstop was put on the Brexit negotiating table. Those taking this position failed to see the constitutional implications for the UK of the backstop, then sought to dismiss those implications, then sought to 'de-dramatise' them. All of these failed because they were based on a multiple misreadings, most particularly a misreading of British politics.

The breadth of the opposition to the backstop across the political spectrum in Britain was evident last week in the House of Commons debate. Some of the many anti-backstop comments made by MPs during the debate are worth quoting because they illustrate the breadth of the opposition to it.

Jeremy Corbyn, the leader of the opposition Labour Party, said: "Northern Ireland would be subject to significantly different regulations from the rest of the UK, but the EU would have a right of veto - a right of veto - over the UK's exit from the backstop arrangement. Far from taking back control, that is actually handing control to somebody else."

Hilary Benn, a Labour Party frontbencher, added: "The House of Commons will not agree a deal because of fear that we will be locked permanently into a backstop."

Kate Hoey, a Labour backbencher who is Northern Irish, weighed in: "I can never support a situation in which Northern Ireland will end up being treated separately from the rest of the United Kingdom and in which the only people who will speak for it will be representatives of the Irish Government. That is just not tenable."

In Ireland, British opposition to the backstop is usually attributed solely to stereotypical English Conservatives who dream of Empire and either hate Ireland or are ignorant of it (or both).

This is simply wrong. Opposition to the backstop has been widespread among the anti-Brexit wing of that party from the time it was put on the table. Contributions to the debate in the Commons last week highlighted this to anyone who is interested in the facts.

Anna Soubry, an arch-Remainer, described the backstop as 'vassalage'. She went on to say: "No one should be under any illusions about how bad a place the backstop will be. Northern Ireland will have limited benefits, but those benefits will be better than the rest of the United Kingdom, which is clearly a threat to the Union of our country."

Robert Halfon, another Tory who supported Remain in the referendum, said the backstop "would create two different regimes for Northern Ireland and the rest of the United Kingdom, and that has the potential to weaken our Union".

Shailesh Vara, who opposed Brexit in the 2016 referendum but who resigned from the Northern Ireland office last November over the Brexit deal, said: "It is also extraordinary that we are agreeing to enter an unending backstop that we will not be able to leave unilaterally. Effectively, we are agreeing to be handcuffed by the EU, and it will determine when the handcuffs come off."

Damian Collins, yet another Conservative who opposed Brexit, echoed this view: "We are trapped in the backstop, and the EU has lots of good reasons to want to keep us there."

With apologies to readers who have seen it spelt out in this column many times over the past 14 months, permit me briefly to repeat just why the backstop has real constitutional significance and is not merely about a few extra checks in the Irish Sea, as it is sometimes portrayed by its advocates.

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. In the first case, there are no border implications. In the second, there are.

Even more importantly, under the backstop, the laws governing commerce in Northern Ireland would have to made in Brussels and Strasbourg, thereby disenfranchising Northern voters. EU law would also be the supreme law of the land. These matters are profoundly constitutional in nature and anyone who claims otherwise does not understand how the legal infrastructure of states works.

The deal so resoundingly rejected by Westminster would have involved Britain agreeing in principle to all these constitutional implications. That was always unlikely.

With just weeks to go before Britain's membership of the EU lapses, it is even less likely that Westminster will reverse its position and swallow the backstop.

Without the backstop, the only way for there to be no change to the Border on this island is for all of the UK to stay in the EU or - at a minimum - to stay in both the EU's customs union and single market. The latter has always been extremely unlikely.

That means that if a no-deal exit is to be avoided the Irish and EU side will have to give way on the backstop or hope that Britain does a full U-turn on Brexit. These things could happen, but as of now, a no-deal is the more likely outcome.

One reason that is the case is because political and public discourse in Ireland has been so supportive of the backstop position, making an Irish U-turn on it all but impossible politically.

Nearly all commentators and those who might be termed experts have been supportive. 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.

Even more curious has been the need of many such people to enter into a competition of outrage over Brexit.

Predictably, the rejection of the backstop spurred this competition. Dr Jennifer Cassidy, an Irish political scientist based in Oxford, provided a particularly stark example after the vote. She began a social media posting as follows: "You invaded us. You conquered us. You divided us. You robbed us of our language, our heritage, our land. You starved us. You starved us. You starved us."

It continued in this vein, winning the approval of thousands of people in the form of Twitter 'likes'.

If this sort of rhetoric was coming from a teenager obsessed with revolutionary chic, it would be one thing. But for a grown-up - with a doctorate in political science, no less -to spout this sort of stuff in 2019 shows that it is not only Brexiteers who have taken leave of their senses.

Dr Cassidy, who was educated at Wesley College in Dublin, followed up her purple prose the next day, writing: "Brexit means lies. Brexit means racism... Brexit means hate."

This reductionist rhetoric may play well in the echo chambers of social media, but as with all simplistic demonising of large swathes of people with vastly different motives for their views, it serves to inflame and legitimise tribalism. Brexit is bad enough as it is.

Sunday Independent

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