Although the sight of it is darkly occluded, the shape of things to come is emerging through the fog.
Whatever immediate political strategy Theresa May chooses today, the dream of the hard line Brexiteers is in process of disintegration. Whatever the political turmoil today, the UK will retain some sort of close relationship with the EU. In Northern Ireland, unionists will have a closer relationship with the Republic and with nationalists generally – and I would argue with only slightly less confidence, while maintaining the constitutional link with GB. That’s what I take away from Eamonn Mallie’s excellent review of the local state of play today. Both will be achieved over time, with hard won consent and a great deal of posturing politics.
Politics and the media are naturally obsessed with today and tomorrow. What are the options for wriggle room in the withdrawal agreement? Westminster’s churning over policy is focused immediately on the backstop. When a generous minded Remainer like the lawyer Dominic Grieve MP shares the opinion with the DUP that it is “ a constitutional enormity,” there is something wrong with it, despite Dublin’s and Brussels’ insistence on it. Following Michael Gove’s defence of the May deal, the FT’s Wolfgang Munchau argues that the backstop is awful for both sides:
Why would the EU want to give the UK the benefit of a customs union without the need to adhere to single market rules, without freedom of movement obligations, and without contributing to the EU budget? This is what Europeans used to refer to as cherry-picking. From the EU’s perspective, it is essential that the backstop is either never triggered, or that it stays as short as possible. The backstop is awful, but it is symmetrically awful. Geoffrey Cox, the UK’s attorney-general, is formally right when he warns in his legal advice that, in theory, it could last forever. Emmanuel Macron, the French president, inflamed the situation with his irresponsible suggestion that France could keep the UK in the backstop forever unless the UK allow French boats to fish in UK waters.
This threat also raises an important legal problem, which Mr Cox (the UK Attorney General) addressed in his paper: Article 50 of the Lisbon treaty allows the EU to negotiate a transitional arrangement, but not a permanent relationship. The Irish backstop, as negotiated in the withdrawal agreement, may not be entirely consistent with EU law because it is potentially permanent.
One way out would be to insert language into the agreement that it makes it clear that no side can force the other to remain indefinitely in this arrangement against its will. The two parties could even agree a procedure to end it.
The EU is right to insist on an Irish backstop. But surely it cannot be right for a rogue French president to use the backstop as a tool for political blackmail. The second piece of help the EU could provide is to open up the choice of future relationships. If it helps to include a Norway-style membership of the European Economic Area as a potential option, then so be it. I have long favoured this outcome myself, but Mrs May’s agreement is the better deal. It gives the UK more freedoms on external trade deals and on immigration policy. More importantly, Norway does not resolve the Irish backstop problem.
The backstop is necessary to seal a gaping hole in the EU’s defences. For Ireland north and south, a hard border cannot be entertained. But the logic of a hard border without the backstop is at best contingent. It has always been distinctly odd for the Republic – never mind the EU – to elevate their concerns for border security above those of the British, and their concerns for cross border trade above the far greater volumes between Ireland and Britain and the impact of likely congestion on the bridge to the continent. As in the UK including NI, political argument in the Republic has taken precedence over the economic. EU solidarity -a new and powerful factor in all our lives – has taken priority over the bilateral relationship with the UK. In one sense this happened at the worst of time times because of the disruptive impact on GFA relationships. One the other hand, it is happening in the climate of fundamental reconciliation that Brexit will not destroy.
The political and the economic now need to come into phase. Between the UK and the EU under whatever government , the debate on the future centres immediately on trying to “tweak” – (weasel word, that!) the withdrawal agreement and extend Article 50, or establishing enough mutual trust in a reinforced political declaration to leave it to the negotiations on the final deal in a process lasting well into the next decade.
If the backstop is the UK’s most vulnerable issue, then free movement – for Theresa May, the reddest of red lines – lies behind much of what is causing political turmoil in the EU. More flexibility is called for. In Dublin sententious repetition of the EU’s formal position laced with schadenfreude at Britain ‘s political confusion should be replaced by making a renewed commitment to Irish-British cooperation that puts British sulking to shame.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London