Dr David Shiels is a Policy Analyst at Open Europe and also works on contemporary political history.
After the Conservative Party Conference ends this week, the Government is expected to present written proposals to the EU on alternatives to the backstop. The reaction from the EU – and the Irish Government in particular – will determine whether Brexit will happen on time, and possibly whether it happens at all. Faced with Parliament’s opposition to a No Deal Brexit, and the constraints of the Benn Act, getting a deal with the EU is perhaps the only way the Prime Minister can keep his promise to leave on 31 October – and even then the prospect of securing the backing of the Commons looks slim.
As things stand, a deal seems unlikely. The EU has downplayed the chances of any significant movement on the backstop, reaffirming their solidarity with the Irish Government. Jean-Claude Juncker, has said that the UK must provide a ‘legally operable solution’ which meets the same objectives as the backstop. In an interview with Ireland’s Sunday Independent this weekend, Simon Coveney said: “I don’t believe anything that the British side has proposed since Boris Johnson became Prime Minister is credible as an attempt to try to get a deal done.”
In many ways, Dublin’s commitment to the backstop has only increased since Johnson became Prime Minister. As Ireland sees it, the point of the backstop is to offer a guarantee against a hard border in all future scenarios, even if the UK pursued greater divergence from the EU. When Irish Ministers said they said they hoped that the backstop would never have to be used they meant it, because they hoped that the UK’s future relationship with the EU would remain as close as possible. Theresa May’s version of the backstop – incorporating the all-UK customs union with the EU – worked perfectly from their point of view, because it suggested that the UK was prepared to accept alignment with the EU for the foreseeable future.
Boris Johnson has taken a very different approach. In his letter to Donald Tusk in August, the Prime Minister made the point that the UK wanted the freedom to diverge from the EU on environmental, product and labour standards: ‘That is the point of our exit.’ He also described the backstop as ‘anti-democratic and inconsistent with the sovereignty of the UK as a state’, effectively demanding its removal from the Withdrawal Agreement. He has repeatedly said that Northern Ireland should leave on the same terms as the rest of the UK, implying that it should also benefit from an independent trade policy.
This language is deeply concerning to Dublin. In the Irish Government’s view, the prospect of divergence as the aim of UK policy reinforced the case for the backstop. Coveney made precisely this point at the weekend, explaining that ‘[Johnson] wants divergence from the European regulatory model, he wants to remove the backstop from the Withdrawal Agreement and by doing both of those things, or saying both those things… he’s removing a really important guarantee and solution.’ The more that London talks about Brexit as an opportunity for escaping the EU’s regulatory orbit, the more that Ireland believes that the backstop was justified.
Since August, the Prime Minister has moved some way towards the EU position, acknowledging the need for all-island alignment on Sanitary and Phytosanitary (SPS) rules. In his speech to the House of Commons last week, the Prime Minister outlined a solution based on an all-Ireland SPS zone, alternative arrangements for customs checks, and a mechanism for securing the consent of the Northern Ireland Assembly.
The signs are that this is still a long way off what Dublin and Brussels expect. They may simply bank the concession on SPS alignment and hold out for more. For the time being, there is little incentive for Ireland to back down. Indeed, to frame the question in this way misunderstands the nature of the problem as it is seen in Ireland. The widely held view there is that Brexit is a problem of the UK’s making, and it is for the British Government to come up with solutions. There is strong cross-party support for Leo Varadkar’s position, and he would find it difficult to move away from the backstop even if he wanted to.
However, to acknowledge Ireland’s concerns about the UK Government’s approach does not mean that their position has been entirely consistent. The backstop was designed to prevent a hard border in Ireland, but it had the secondary aim of protecting Ireland’s place within the EU’s Single Market. The backstop proposal – whether in its Northern Ireland-only or all-UK variant – imposed considerable obligations on the UK, causing it to be rejected in the Commons on three occasions. Throughout the process so far, the Irish Government have failed to grasp the strength of Brexiteers’ feeling on the issue, or the extent to which unionist concerns would be listened to in London.
In some ways, Johnson’s approach to the backstop has started a much-needed discussion about what aspects of the backstop are strictly necessary. In doing so, he has been accused of backtracking from the UK’s commitments as set out in the December 2017 Joint Report, but it is better to have this discussion now before a Withdrawal Agreement is signed.
The Prime Minister has also forced a discussion about the ‘anti-democratic’ nature of the backstop. Until now, the Irish Government has seen the question of a “Stormont Lock” as a domestic UK commitment. Yet – as Open Europe’s new report points out – the question of Northern Ireland’s consent for any special arrangements is now more acute than ever, especially in the scenario of greater UK-EU divergence that Ireland now envisages.
In the end, the question of whether a deal can be reached comes down to politics. Time is not on the British Government’s side. Along with the rest of the EU27, Ireland believes that making concessions on the backstop would still not be enough to get the Withdrawal Agreement through the Commons. For now, an extension and then a general election remains the likely way forward. This may lead to a destination that is more favourable from Ireland’s point of view, including the possibility of a second referendum and No Brexit at all. Another possibility is that the Johnson Government will be returned with a majority, at which point the EU may again test the strength of the Prime Minister’s opposition to a Northern Ireland-only backstop. The risk for Ireland is that Johnson stands by his position and is prepared to go for a No Deal Brexit.
In the meantime, it is necessary for both sides to keep talking. The health of the bilateral relationship between the UK and Ireland will help to determine the UK’s future relationship with the EU.