26 March 2019

The case for the backstop is unravelling

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Since at least late 2017, the UK has been locked in fraught negotiations with the EU about Northern Ireland. According to Brussels and Dublin, the government must accept an insurance policy — or backstop — in order to prevent the “hard border” that would be erected in the absence of an agreement.

Now, the Irish Prime Minister, Leo Varadkar, has expressed confidence that special arrangements can be put in place to avoid new checks and infrastructure between the Republic and Northern Ireland, even if there is a no-deal Brexit. So, what exactly have we been arguing about for 16 months and why has Britain allowed itself to be fooled and humiliated repeatedly on the border question?

The taoiseach was speaking as the European Commission completed its preparations for a no-deal outcome. The EU states that it “will be required to immediately apply (WTO) rules and tariffs at its borders with the UK. This includes checks and controls for customs, sanitary and phytosanitary standards and verification of compliance with EU norms.”

A commission official confirmed that, though controls will have to be carried out on the island of Ireland, that “doesn’t mean we’d want to see visible infrastructure. We’re working very closely with Irish authorities to try and perform controls away from the border if at all possible.”

When British politicians suggested that technology could be used to avoid customs posts and other visible buildings, chief negotiator Michel Barnier dismissed their theories as “magical thinking”. Now the EU is preparing a similar system and the draft withdrawal agreement commits Brussels to explore “facilitative arrangements and technologies for ensuring the absence of a hard border”.

The Irish Republic’s combative foreign minister, Simon Coveney, who fronted its campaign for the backstop, finds himself denying that it is impossible to protect the single market and avoid a hardening of the frontier, if the UK leaves without a deal. “The British government have made it clear in their paper… that the British government, the Irish government and the European Commission will need to work closely together,” he said.

This reversal has taken place gradually, as it became obvious that Dublin’s brinksmanship carried with it considerable risks. By insisting on a backstop that would create an internal economic border in the UK and place Northern Ireland under the EU’s control, the Irish helped ensure no deal became the most likely Brexit outcome. Encouraged by Dublin, Brussels insisted that the UK compromise its authority over an integral part of its territory.

In January, Varadkar insisted that even in a no-deal situation, “there will not be a return to a border”. Coveney was less forthright, saying, “if we don’t have a Withdrawal Agreement it becomes very, very difficult to prevent that”. With the Brexit deadline looming, both men are now trying to contain the damage that their negotiating strategy has caused.

Some reports have suggested that European leaders are frustrated at the Republic of Ireland’s refusal to plan to secure its border. Angela Merkel has called for a “special task-force” charged with avoiding new checks and infrastructure, while ensuring that the single market is protected.

Varadkar denies that there are tensions between Ireland and other EU countries. His government has started discussions with the UK about keeping the border moving fluidly. He claims the UK “has already indicated that in the event of no deal the first thing they will do is treat Northern Ireland differently in terms of customs”. Coveney has tried to depict this commitment as a backdoor route to the backstop.

That might be Dublin’s preference, but the EU’s insistence that checks will take place, albeit away from the border, without new infrastructure, sounds much more like the ‘max fac’ solution favoured by many pro-Brexit Tories and the DUP. These ideas have been ridiculed repeatedly by the Irish government and officials in Brussels. Yet, no-deal preparations in both Ireland and France are focussed on using technology to make borders as frictionless as possible.

The contradiction is glaring, but it hasn’t stopped Theresa May from continuing to defend the backstop, even though it crashed her deal and now it turns out that it wasn’t necessary after all.

Her attitude visibly needled the DUP’s Westminster leader, Nigel Dodds, who challenged May in the Commons yesterday, “Leo Varadkar has made it clear that, in terms of no deal, he is very confident that there will be no border checks. The Prime Minister shakes her head, but that is what he said. Michel Barnier and Angela Merkel have said the same. The reality is that this backstop problem has been elevated.”

That’s long been the view of opponents of the backstop, since it was first mooted as a form of “special status” for Northern Ireland, through to its rebranding and “de-dramatising” by Michel Barnier and then to the government’s acceptance of the Northern Ireland protocol, the basis of which Theresa May previously said no UK prime minister could ever accept.

The notion that leaving the EU creates enormous problems at the Irish border was a massive PR success for Brussels and the Irish government during the negotiations, but it’s now backfiring. It has brought the UK to the brink of a no-deal Brexit; yet, the proponents of the backstop continue to treat it like an article of faith, even as the arguments on which it was based fall apart.

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Owen Polley is a writer, commentator, consultant, and the co-author 'An Agenda for Northern Ireland After Brexit'.