Time and again, the academic critics have taken apart the British approach to the Brexit negotiations with relish. But with the UK at bay and Westminster in pieces, is it not time to examine whether the EU can stretch out to help, not only out of pity but common interest?
The critics’ analysis of the UK’s approach is often forensically compelling. But it’s also obvious that most are cheerleaders not only for the EU’s approach but the cause of a gradually integrating Europe. They have no sympathy for the urge to leave.
Locally their reading of the GFA, now regarded as orthodox in the EU and even among most UK political opinion is different from the Conservative and unionist interpretation of David Trimble and the think tank Policy Exchange which claims that the backstop may be in breach of the Agreement itself.
They forget that all successful negotiations produce a successful outcome for both sides. Specifically they deride the very notion of a time limit on the backstop, saying that insurance policies don’t have time limits. But they do you know, and over a period they have variable premiums and conditions too.
The latest analysis from the Centre for European Reform of the state of counter proposals to the backstop based on new technology is as persuasive as ever, at least to a lay person unable to arbitrate between rival claims about the state of technology available.
Yet something should be nagging in their minds about the backstop. Although it’s neat as an avowedly temporary exit strategy, is it altogether satisfactory for the EU to retain a veto on the British exit and for Northern Ireland to continue to be bound by its particular terms over the heads of its people, whether supporters of it or not? The answers are well known but the question stands. It’s not dismissed by the pragmatic judgement that economically the backtop delivers the best of both worlds for the border economy, (although locally, that surely helps).
Even more to the point, a No Deal crash out, now regarded as the most likely outcome, threatens the very consequences the backstop is supposed to prevent – a hard border despite all the protestations to the contrary and serious damage to the economy in all parts of these islands. This can no longer be studiously ignored in favour of concentrating on the defects of the British negotiating position.
Dan O’Brien, an economist and former eurocrat in Brussels is one of few voices in the Republic to call for concessions in his Indo column.
The risk that the backstop would bring about a crisis, and lead inexorably to a no-deal Brexit with all its damaging consequences, was always considerable. Demanding that there be absolutely no change to the Border for all time, and claiming that any change whatsoever was a catastrophe for the Good Friday Agreement, were high-risk positions to take. The later position also came with the downside that any appearance of compromise could be construed as putting peace at risk. Painting oneself into a corner when the stakes are so high is never a good idea.
The backstop gambit was not only risky. It also came with costs. On this island it has deepened division and distrust between the two traditions. Though it may be an inconvenient truth which is simply ignored south of the Border, political unionism is united against the backstop. It is not only the dunderhead element in the DUP which sees it as an attempt to annex the North.
The most obvious change to the Withdrawal Agreement that could change the dynamic in Westminster is to time-limit the backstop. A five-year limit, combined with the current transition period up to the end of 2020, would guarantee zero change to the Border until 2025. A lot could happen in six-and-a-half years, including a united Ireland. If the alternative is a no-deal Brexit in five months, which would, among many other bad things, mean a hard Border immediately, then it may be the least bad outcome from this whole fiasco.
The backstop in this form exists because the EU don’t trust the British, and yet it expects the British to trust them. This is its basic flaw. To its Tory opponents, it’s an instrument of implied coercion before which Theresa May bowed. It’s therefore the reddest of rags to the hard Brexit bull.
Thankfully cautious and heavily contingent hints of flexibility are coming out of Brussels via seasoned specialist reporters. Even the Brexit Daily Express clutched at straws from the BBC’s Europe editor Kayta Adler
Re #Brexit renegotiation: It’s true the text Theresa May signed up to when EU agreed to a Brexit extension clearly states this extra time can’t be used to renegotiate the (legally-binding) Withdrawal Agreement though the (aspirational) Political Declaration can change HOWEVER ..
I think EU leaders will engage with more than a ‘Forget it’ come the autumn. They will at least listen to what the new UK prime minister has to say. Remember, the Brexit extension runs out end of October and EU leaders want to avoid a no deal #Brexit which would be costly for them too BUT as before, they won’t avoid No Deal at any price
Privately a number in EU think the Irish backstop text probably pushed UK too far. Some countries were open to a ‘far enough away’ end date but Ireland was vehemently opposed and EU wants to be seen to protect one of its own rather than a leaving member country. If the new UK prime minister managed to come up with a new plan for Irish backstop that addressed all main concerns: UK unity, integrity of EU single market and N Ireland peace process, then EU would definitely consider BUT.. When comes to backstop, EU feels they’ve been round and round the issue with UK and that no better compromise solution exists as the one currently in Withdrawal Agreement
The Telegraph’s excellent Europe editor Peter Foster who as we’ve seen is a searing critic of the No Dealers, has picked up the same threads. He has a clear message for May’s successor to which the candidates should pay heed soberly, unlike the scoffing and increasingly desperate predictions of Dominic Raab and David Davis that the EU are bound to give way if only the UK gets tough with them and refuses to pay its dues. Terms may be emerging for final agreement several years hence, not two of three. The timing of withdrawal is so far left open. And there’s room for the new and dynamic role for the Agreement institutions we’ve been arguing for and Dublin supports.
..all of the Tory leadership contenders, including those on the softer end of the spectrum like Jeremy Hunt, are clear that the divorce deal will need to be renegotiated. Just tweaking the Political Declaration will not be enough.
This might make it seem that a head-on collision between the EU and any new Prime Minister is inevitable – but diplomats and officials in EU capitals have not given up figuring out a way to avoid a truly destructive crash.
The EU ‘no renegotiation’ position is indeed deeply entrenched, and not just in the office of Mr Barnier who can be expected to defend the deal he brokered and on which his reputation as the EU’s chief negotiator is staked.
More fundamentally, it reflects the fact that Mrs May lost the trust of her fellow leaders. When it became clear that no concession would deliver a deal in Westminster, this rendered all concessions pointless. The negotiation got stuck in a doom-loop.
But listen carefully in Brussels and it is clear that for all the continued assertions that the deal cannot be renegotiated, there is an acceptance that a new British prime minister will have to be given a fair hearing.
If they are smart, they will quickly seek meetings in Berlin and Paris and seasoned diplomatic hands in Europe say they can expect these to be granted.
The trick, as one senior EU diplomat puts it, is to calibrate a request in such a way that it is very difficult for the EU to dismiss out of hand.
The window to get this right will be very short. A demand to ‘bin the backstop’ will be rejected outright and very quickly scupper any chance of a reset.
Brexiteers fear that the Irish backstop is potentially a permanent trap, so the obvious request (which the EU is preparing for) is a time-limit.
It will need to be realistic – not a demand to have a trade deal done by 2022 – but a genuine reinsurance policy to reassure Brexiteers that the UK can exit. Five years after the end of the transition period is a timeframe that is talked about, or perhaps seven.
Diplomats speculate it could be sold with the rider that the Good Friday Agreement will continue to pertain when that time-limit expires. This would reassure both the Irish government and the Irish lobby in the US congress.
To have any chance of success, such a request will need to have a pre-demonstrated stable majority in Parliament (perhaps 50 or 60 votes) and the new Prime Minister, likely a hard Brexiteer, will have needed to have demonstrated a commitment to fair dealing.
Mrs May shot herself in the foot in October 2016, in her first speech to the Tory Party conference, by setting deep red lines and playing to the gallery. When the new PM rises to make their maiden speech in Manchester they must avoid the same fate. Europe will be watching.
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