It’s Ireland’s call as well as England’s – and both can still win the match!

Let’s go straight to the bottom line. Ireland and EU26 say the backstop is necessary to prevent a hard border. The UK says insistence on the backstop in its present form is the best way to guarantee a hard border. These are  expressions of perfect deadlock. Nevertheless, after the defeat of the withdrawal deal by over 200 votes, Mrs May is returning to Brussels  to seek  an “alternative” to the backstop, either a time limit or unilateral exit mechanism to prevent the UK from being trapped in EU’s structures indefinitely – both of which have already been publicly rejected by Brussels. Undaunted by  the most swingeing rejection of all, the home secretary Sajid Javid  told the BBC this morning  that his  Border Force advisers had assured him technology exists to keep the Irish border open after Brexit without the need for a so-called ‘backstop’ mechanism. “The only thing that’s missing is a bit of goodwill on the EU side”. What’s  Javid up to? Sucking up to the ERG, or making a token gesture to show the passionate champions of the technology solution like Owen Paterson, IDS and David Trimble that at least they tried?

Simon Coveney has repeated his insistence there will be no withdrawal agreement without the backstop, although he can imagine tweaking the political declaration. On the face of this won’t be enough for Mrs May.

Coveney likens Mrs May’s reluctance to declare No Deal ” off the table”  to somebody threatening to jump out of the window. Is that any reason for Ireland joining them in a race to hit the bottom? On the next page – not be turned over perhaps before Mrs May reports to the Commons on 13 February – lies the suggestion of a further retreat to a customs union.  As  this involves  wiping out one of her red lines for independent free trade deals, it threatens a Conservative bust but elevates a cross party Commons majority. The real bottom line to hold on to is that as the cabinet and the Commons will not countenance No Deal, everyone has to work through the implications of that.

Westminster is like an alcoholic who has to hit rock bottom before he faces reality. Ireland is  a stubborn drinker who won’t give up yet, just because his bigger mate is going down the  tubes. Why should he help out now when so many earlier attempts have been rebuffed?

Mrs May goes to Brussels with a precarious “mandate” to renegotiate but her room for manoeuvre is limited. Her offer of pork barrel deals a la DUP to anti-deal  Labour MPs will suffer official Labour vetoes. Talk of a calling a general election is an empty threat. The Conservatives can’t do it unless Labour agree. What would they say in their manifestos about Brexit and what reality would be changed?

Adds later The Irish Times’ Noel Whelan is outraged by Mrs May’s U- turn but misunderstands  the parliamentary position and takes serious offence.

Her actions represent an extraordinary breach of constitutional and diplomatic norms. Usually government leaders negotiate with other countries until they feel they have secured the best deal possible.

Then they bring this negotiated outcome to their parliaments for ratification. If they fail to secure parliamentary endorsement they resign.

The scale of her diplomatic insult to Ireland also needs to be appreciated. Having expressly abandoned the text of the agreement May then whipped her own parliamentarians to vote for a strategy which specifically targets that aspect of the deal which is of most importance to Ireland. It’s a strategy pointedly designed to maximise pressure on Ireland.

In so doing she has given free rein to those Brexiteers and Conservative cheerleaders who wish to frame Ireland as being responsible for Europe’s refusal to give them Brexit on their fanciful terms. More dangerously, May has contravened the spirit of the last treaty the British government negotiated with this country, the Belfast Agreement, and in so doing has imperilled our peace.

No understatement there then! The reply is not so exciting. In earlier circumstances the scale of  the withdrawal agreement defeat would indeed have been an issue of confidence. The Brexiteers would either have come to heel or there would have been a general election and Article 50 would already have gone into extra time. However the Fixed Term Parliaments Act passed to hold the Cameron coalition together ruled the traditional outcome out.  MPs were able  to smash the deal out of court without risking their seats.  A vote of confidence these days can only be  moved  on that specific wording and no other topic. Labour’s token staging of a confidence  suffered inevitable defeat when the badly split Conservatives sunk their differences to defend the government whose signature policy they had just torn to pieces. The prime minister had no choice but to change tack or resign.

Inveighing against Mrs May gets us nowhere. Her critics have parliaments too don’t they?  Don’t they realise that when the Commons rejected the deal, everybody has to help her out?

If ever there was a case for a fresh compromise, this is it.

Whelan’s fellow columnist  the historian Diarmaid Ferriter takes a more measured approach

The series of mantras adopted by the Irish Government since the Brexit referendum have been reasonable and understandable, but they may have a shelf life that will ultimately require a change of course.

Where the solution will lie is in collaboration, once again, between London, Belfast and Dublin, with the support of the EU; an alternative version of the peace process, during which the EU was content to remain largely on the sidelines until a solution had been devised which it could then support politically and economically.

When the arch Remainer  the  former attorney general  Dominic Grieve joins the DUP in calling the backstop “ a constitutional monstrosity “ there must be something wrong with it.  The reviled DUP have something of a point. If the EU are setting legal guarantees as the gold standard, where are the legal guarantees that the Northern Ireland specific backstop will ever been abolished? Why should the EU be taken on trust any more than the UK, if it’s  an agreement that’s  being sought  rather than a power play?  The brand label  “made in UK/NI”is surely a turn-off, only emphasising the difference from “ made in the UK”.

A border down the Irish Sea is no more desirable for the Republic than GB or NI. The backstop itself – as agreed by Mrs May but rejected by the Commons, was a genuine attempt to square the circle of leaving the EU to which any state is entitled – with  holding the “precious Union” together when its outlier members  Scotland  and Northern Ireland registered a different result from the majority verdict. Whether  or nor you agree with  the aim or the tactics or both,  the commitment to the deal was genuine, even though unsuccessful. The commitment to Northern Ireland interests – and mutual Irish and UK interests –  remains and should be so recognised.

Dublin’s  assumed role as the custodian of the peace process is taken for  granted in the wider EU, in default of any gentle correction from London beyond the ranks of unionists and their keenest supporters. Which is strange when you think about it, as by far the greater responsibility for security rests with the British government – until you remember that Dublin will from now on provide the   touchstone for so many areas of policy affecting the UK.

Yet it’s very hard indeed to imagine a final settlement that is very different from the terms of the backstop.  The crucial difference would be if it is reached by consent and in terms which effectively rule out a border in the Irish Sea.  Available processes are contained in the backstop itself and in the political declaration. They should be agreed and administered as a British- Irish agreement  or in a side treaty ratified by the EU. The requirement for legal review suggests a role for the EFTA court. This is big stuff and would take time to crystallise during a transition of at least two years.

If UK withdrawal had been a single rather than a two stage process as David Davis has never ceased to lament, there might have been an almighty bust up but we would never have heard of the backstop.  The process is  not natural law, as  so many commentators  seems to think, but a system agreed at Lisbon deliberately designed to make withdrawal  from the EU as hard as possible, putting the withdrawer  at a progressively greater disadvantage and making it nigh on impossible  to quit without serious damage. In other words, hardball politics.  Now that we are where we are, is it really  the game to play?

Dublin asks why make concessions now unless Mrs May can guarantee delivery this time? But that’s the whole point. She can’t guarantee anything unless the EU – led by Ireland it seems – bends. Despite the hard line in public Irish Times political editor Pat Leahy writes:  

The choice that will face Varadkar, Coveney and Donohoe, the decision-making triumvirate of this administration, is this: do they stick to the not-an-inch position and therefore run the risk of a no-deal outcome; or do they offer an amendment to the backstop to help May?

However, before the Government can even approach making such a decision, it needs one crucial piece of knowledge: it needs to know if a concession will actually result in May being able to get the treaty through her parliament.

The second point is that this will be Ireland’s choice to make. EU sources are adamant about that privately and publicly. Such pressure as is on Ireland (and it will be significant) will come from the reality of the situation, not from Brussels, Berlin or Paris.

These matters are already being discussed at the highest levels in Government; of course they are. No decisions have been made yet. But they are coming.

About the prime minister herself, Times columnist Philip Collins hits bullseye.

It is humiliating, say her critics, to spend so long in negotiation for a deal which is then junked on a whim. Mrs May proves over and over, however, that humiliation is not something that simply happens to you. It is something you have to feel and she does not feel it.

If Mrs May does the right things now, though, she might, just might, be able to get her deal through. The first act is to tread softly in her approach to the EU. The best way to end a political stalemate is to change the terms. Mrs May has been told that there is no appetite in the EU for reopening the withdrawal agreement. So start by making it plain that there is no desire to do so. It will, however, be necessary to have a separate mini-treaty in which Britain is given greater assurances that it will not be caught indefinitely in the backstop. If these can be adorned with some legal protocol, that would help a great deal too.

Mrs May can help to pass her deal by calling in the most intransigent of the rebels and instructing them, calmly and with no sense of threat, in the political reality. There is no majority in parliament for leaving without a deal.

Somehow, at the end of a very rocky road, it will happen.


Imagine festival 202

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