The Irish 'Back-stop'

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How the Irish border backstop became Brexit’s defining issue

By Alex Barker in Brussels and Arthur Beesley in Dublin

No one quite remembers who coined the term that could sink the Brexit talks. In public at least it was Leo Varadkar, the Irish premier, who first mentioned a “backstop” plan for the Northern Ireland border “if all else failed”. The old cricket expression stuck, capturing in a word the biggest diplomatic gamble on Brexit since Britain’s referendum.


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Mr Varadkar was addressing the Dáil in December 2017 after UK politics had gone, in his words, “somewhat pear shaped”. He told the Irish parliament that he wanted a backstop plan to guarantee no hard border would return to the island of Ireland, whatever happens to UK-EU relations after Brexit. But even in such a vague form, the idea had brought Brexit talks, and Theresa May’s minority government in Westminster, to the brink of collapse.

Within a few days a messy compromise was found, where Britain first agreed to the principle of a backstop.

But it was an imprecise plan and senior EU negotiators at the time saw “a big collision” over Northern Ireland’s status as “unavoidable” at some point. “The Irish border is where reality meets Brexit fantasy,” said one. With just four months left to Brexit day, that final reckoning is fast approaching.

Border disputes have again brought talks to a halt. Mrs May is cornered in Westminster. Visceral language is back in Northern Ireland politics, with unionists vowing to protect their “blood red lines”. Brexit negotiators see the risk of a no-deal exit rising sharply. Warnings of a return to violence in the province are shockingly routine, from politicians and police alike.

And behind the dauntingly complex Brussels negotiation stands one inescapable issue. “No matter how you turn it, you always come back to our backstop,” says one senior EU official.

Seen from Brussels, it has emerged as an almost inevitable, practical response to Brexit-related problems. To keep open land borders in Ireland would require — as a last resort — a regulatory line along the Irish Sea, with the UK province’s sitting in the EU’s trade and regulatory zone.

In practice, however, this backstop idea evolved over time — more so than any other element of the EU’s Brexit negotiating strategy. It is the story of two years of painstaking Irish diplomacy that locked in a formidable EU alliance, helped along by British mis-steps and miscalculations.

Out of a crisis of trust has emerged an “insurance policy” that could make or break a Brexit divorce deal, as well as frame the future UK-EU relationship. Set against the foreboding legacy of the Troubles in Northern Ireland, which stretched to the late 1990s and claimed more than 3,600 lives, the stakes could hardly be higher.

With hindsight, one senior EU diplomat closely involved in talks described Britain’s acceptance of the backstop principle as “a catastrophic mistake” that may have boxed in both sides. Senior British figures have privately warned Brussels that it is the equivalent of a “Carthaginian peace”, sowing salt in the earth. Whether the warnings are overblown or not, today the backstop is the headline price for an exit deal, and an orderly Brexit.

“There will be no withdrawal agreement without the backstop,” said Simon Coveney, Ireland’s deputy premier, last week. “End of story.”

Brexiters often trace their backstop woes to Mr Varadkar, depicting him as an impetuous 39-year old leader pandering to nationalists. But the most significant shift actually came under his predecessor Enda Kenny, the amiable former schoolteacher who served as taoiseach for six years until June 2017.

He had a good rapport with David Cameron, far stronger than with his successor Mrs May. The two even spoke in the referendum aftermath, just before Mr Cameron resigned as British prime minister. “It was typical Cameron, he was very chipper: ‘it just didn’t fall our way’, that kind of thing,” says one ally of Mr Kenny.

The Irish government was more prepared than Britain for the implications of the Brexit vote, and certainly less breezy. But the result was still a disorientating shock.

Dublin’s first instinct was to save the 1998 Good Friday Agreement — the bedrock of peace in Northern Ireland — through bilateral fixes. Informal exchanges between officials began with London to look at technical solutions for the border, ensuring the free flow of goods for both north-south and east-west trade, the main route for Irish exports to Britain and Europe.

At this stage Michel Barnier, the EU’s chief Brexit negotiator, was also exploring ideas London has long championed: so-called trusted trader schemes, technology and systems to minimise regulatory checks at the border. With time, though, it became evident that European law gave little space for such muddle-through options.

The political magic of the Good Friday pact relied in part on Ireland and the UK being EU members. The pact does not mention borders or customs because common EU rules and courts allowed the Irish frontier to become virtually invisible. Brexit brought back to the fore a highly sensitive question that had been sidestepped: whose laws should apply in Northern Ireland to keep the borders open?

By January 2017, Mr Kenny realised technical fixes would not cut it; Northern Ireland first required political solutions. He saw little choice given Mrs May in her Lancaster House speech that month seemed determined to pursue incompatible aims: to leave the EU customs union and single market but keep the UK border open with Ireland. “It became very clear that we needed an insurance policy,” says an Irish official.

Mr Kenny told Mrs May as much. Since Brexit caused the problems, it was down to Britain to fix them. Mr Varadkar further hardened the tone. “The shutters came down in Dublin,” says one senior British official. Stephen Donnelly, former Brexit spokesman for the opposition Fianna Fáil party, says relations became “more antagonistic”. “The official level antagonism was an instruction from government to cease engagement with British officials,” he adds.

Underlying this was a more fundamental strategic choice. “Ireland was faced with a question that it has never really answered before: if there has to be a choice will you line up with Europe or Britain,” says Christopher McCrudden, a professor at Queen’s University Belfast. One EU diplomat handling Brexit says the decision was clear enough: “They want to be close to Britain, but they decided they had to be closer to us.”

When it came to the negotiation, Dublin’s first big achievement was pushing Northern Ireland to the front of the Brexit queue. After the referendum, most European capitals knew little of the province, nor the problems Brexit raised. But by April 2017, in their official negotiating mandate to Mr Barnier, EU leaders described this small region as of “paramount importance” for them all, one of the top three priorities in divorce talks. Dublin had convinced its partners to back what European Council president Donald Tusk described as an “Ireland-first” policy.

Yet the EU’s precise aims remained undefined. Its guidelines instructed Mr Barnier to seek “flexible and imaginative solutions” for the Irish border. But it was not until the end of 2017 that the “backstop” plan emerged, drawing a regulatory line along the Irish Sea.

It won support for two crucial reasons. The first was British tactics. Mr Barnier — and many member states — thought David Davis, the then Brexit secretary, was using the province as “a bargaining chip”, exploiting concerns over peace to start a conversation about favourable trade terms for the whole UK. A Northern Ireland-only backstop avoided that trap.

The second was Irish foresight. Rather than plead for exemptions for its northern border, Dublin understood its diplomatic strength came from upholding EU law — if necessary across the entire island of Ireland. Had other European countries seen Northern Ireland as a loophole, “the sympathy [for Ireland] ends”, says one EU diplomat.

The approach won over France and other close UK trading partners, who had worried about the unorthodox land border arrangements creating a backdoor to the single market. Soft-Brexit supporters also warmed to the idea, thinking it might tip the debate towards closer UK-EU relations. “Everyone weaponised Northern Ireland for their own interests,” says one senior EU diplomat closely involved in the policy.

The most important decision, however, was arguably still to come.

When accepting a “backstop” last December Downing Street was aware “some quite big strategic decisions” were being taken in a “very specific context”, according to another senior British official.

But Brexiters thought they had wriggle room. Boris Johnson, former foreign secretary, claimed he was assured the concessions were a “meaningless” way to make progress in divorce talks. Days after the December deal Mr Davis said it was not “a legally enforceable thing”.

Whether naive or misinformed, the remarks reinforced Mr Barnier’s worst fears, just as the European Commission was assessing how to put a backstop in Britain’s exit treaty. It bolstered the commission’s instincts to go for an uncompromising, self-contained, legally-watertight approach — even if it meant taking the political path of most resistance with London.

Mr Barnier finally published a full version of the backstop in his draft exit agreement in February, after London was unable to put forward its own proposal as it had promised. The paper marked a fateful turn, which has snarled up talks to this day.

The EU was, in effect, demanding Britain pledge to potentially cede control of much of Northern Ireland’s economy and trade policy. The terms would be fully detailed in Britain’s exit treaty, irrespective of what future relationship the UK sought with the EU. Even Dublin was taken aback by the bluntness of early drafts, and tried to soften parts, according to EU diplomats.

Unionists denounced an EU plot to “annex” Northern Ireland, while Mrs May said “no prime minister” could accept such trade barriers within the UK. One senior figure on the UK side says Mr Barnier “created a zero sum political game in Northern Ireland” — a situation the region’s peace negotiators studiously avoided. “As soon as the commission put that [backstop] down, there was no going back,” says one senior figure on the UK side of talks.

With hindsight, even some on the EU have misgivings over the stark February draft. The political implications of the commission’s technical solution were never formally discussed with EU leaders, or the college of 28 commissioners. One EU diplomat says it was taken “in a political vacuum”. “It short-circuited the process of reflection,” says another critic of the move on the EU side. “If we had ever wondered about different ways, they were now closed off.”

Mrs May’s governing majority relies on the Democratic Unionists, the dominant pro-British party in the region, and their warnings could hardly be clearer. Arlene Foster, the DUP leader, has said even watered-down versions of the backstop cross her “blood red lines”.

Strikingly she has also drawn parallels to the 1985 Anglo-Irish Agreement, a deal seared on unionist memory as a betrayal where London gave Dublin a say in Northern Ireland’s affairs. Unionists took to the streets in a campaign of civil disobedience and in a sermon Ian Paisley, the DUP founder, denounced prime minister Margaret Thatcher: “O God,” he said, “in wrath take vengeance upon this wicked, treacherous lying woman.”

Mr McCrudden says Ms Foster’s evocation of 1985 “sends shivers — I do not think they are bluffing. And so there is a real problem: as regards the future of the island, neither side is bluffing.”

Mrs May’s preference is to create a cascade of alternative options to ensure a Northern Ireland-only backstop is “no longer needed”, at least for customs. These include the extension of Britain’s transition period, or a temporary UK-EU customs union.

The objections are plentiful. The EU refuses to allow the backstop for Northern Ireland to potentially become a full trade deal for the UK, insisting any UK-EU customs union is negotiated after Brexit. Brexiters are furious at being tied to the EU’s customs union, without a clear end date. Meanwhile the DUP hates Northern Ireland being bound to the EU’s goods regulations, creating barriers across the Irish Sea that split the UK market.

Mrs May is aiming for a deal with Brussels that would allow her to claim a Northern Ireland-only backstop will not be needed. No one knows whether it will pass muster in Westminster.

Mr Barnier has no qualms over demanding legal clarity for a vulnerable region, even if it leads to an outcome with no deal and no backstop. Some EU diplomats wish alternative paths had been taken to avoid this stand-off, but recognise it is now impossible to undercut Ireland.

“Did the UK subliminally think that small Ireland would not retain the support?” asks Brigid Laffan, a professor at the European University Institute in Florence. “We’re bigger, we’re more important — that does not wash if you are a country leaving. You need to mind your manners on the way out.”

ft logoFT Source: Alex Barker and Arthur Beesley 2018 “How the Irish border backstop became Brexit’s defining issue ” Financial Times 30th October. Used under licence from the Financial Times.

 © The Financial Times Limited [2018]. All Rights Reserved. 

Original article: https://www.ft.com/content/73ac4a5c-d83f-11e8-a854-33d6f82e62f8


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