Is the backstop beginning to slide towards a deal the DUP won’t like?

On the eve of Boris Johnson’s visit to Dublin it comes as no surprise that Sinn Fein claims that Leo Varadkar has conceded the backstop “at the eleventh hour.”  Deniable though it may be, do they yet make a plausible case, as the squeeze tightens on Dublin to try to reconcile the defence of the single market with the serious threat to jobs and the all-island economy? Does Vardakar’s concession on the one hand  that checks will be phased in “over time” and yet may take place “close to the border” give him the worst of both worlds, as well has handing Boris Johnson a vital get out of jail card in producing a Deal after all?

RTÉ’s Europe Editor Tony Connelly surmises that perhaps officials in Brussels hope by adopting a “softly softly” approach they may be able to address the issue in an inconspicuous manner…While there will be political pressure on Leo Varadkar and his team to clarify where checks will be following Brexit, it is clear those details are still under negotiation with the European Commission. That is why every utterance by the Taoiseach and his colleagues will be parsed and analysed for any new details over the coming weeks.

Either way, the option of an “inconspicuous manner” of dealing with the backstop will reduce sharply over the next few weeks.

Peter Foster Europe editor of the Daily Telegraph, who is that rare being, an objective analyst of all positions, has been thinking aloud on Twitter about where politically the backstop is now.

Are ( the Irish government’s current statements) an attempt to finesse an issue that have been dancing around for two years now – how can EU commitment to peace be reconciled with demands to protect integrity on EU single market?. Where does the line lie?

The key questions..

Because if the EU is willing to turn a blind eye, then why don’t we do a deal on the Irish border now? What have we all been arguing about these last three years? And if it turns out in a ‘no deal’ that Ireland/Commission has been lying about binary nature of border.

 Of course, this briefing could be intended to reassure Irish readers that a ‘no deal’ border won’t be so bad and that the EU will give Dublin a soft ride…but they can read the press in Europe too.

And that raises big Qs about Ireland’s commitment to single market. Because @simoncoveney can’t say Ireland will do what is necessary to defend position in single market on Wednesday and have Europe reading on Saturday that it’s all fungible. It’s a bad look.

It is also not my understanding of where Ireland and @LeoVaradkar

are on this issue. A few months back they were dabbling with idea of checks with EU26, but seemed to accept message from Commission & member states that it was fairly binary proposition.

Either Ireland has status apart, OR it has place in Single Market. If not, and Alternative Arrangements can make border function, then why not go for it now?

As I wrote in June, member states have put Ireland under clear pressure to say how a border will operate in reality in a no deal – since EU interest require the protection of the single market one way or the other. And if Ireland doesn’t want ‘yellow pack’ (cheapo) single market membership it will HAVE to make hard choices. And member states, like Poland for example, who put up border at accession, will have limited patience on this point. And Dublin knows it.

The ultimate point is this. Dublin has argued (right I think) that the all-Ireland economy is a lynchpin of peace & stability – even if SM integrity can have some fluidity – this concept does not.

Because once there is arbitrage/cracks in system, how long before the paramilitaries start to exploit them – before we embark on the slippery slope back to turf wars, snitches, guns and men lying on the side of the road with broken knees. These are very difficult issues, but suffice to say that if EU member states accept no deal fallout on basis that Ireland has agreed to defend Single Market etc – and find out it could have been prevented all along, that will be very difficult for Ireland.

I think there are flaws in Foster’s argument.

First, on the threat to peace, the big question an English commentator might miss is this: Would protests escalating to violence or outright attacks take place inside the Republic? That would be a huge switch of strategy for any group purporting to follow the republican tradition – leaving aside their capacity to do so .

It also prompts the thought that the claims of the threat to the overall peace process (as distinct from the political process) are exaggerated – not that they can ever be dismissed altogether.  Sinn Fein would come under huge pressure to condemn them and unite opinion against them with whatever qualifications, if it wants to be taken seriously as a potential party of government.  True, smuggling on an international scale unknown in the days before the single market and far beyond the ken of the likes of Slab Murphy would also be a tremendous headache. It would  however quicken the need for  final resolution surely little different from the backstop.

And secondly, the EU and Ireland will have to sort their own dilemma by 17 October at the latest. Ironically it’s Johnson who is giving then cover by failing so far to negotiate on the basis of firm British proposals to which the EU and Ireland will have to respond.

Tony Connelly lays out the present position as seen from Brussels and Dublin

Extracts…

Boris Johnson has followed through on his threat to try and eliminate the backstop and in the process is tearing up the commitments the British government made to protecting the all-island economy and North-South cooperation in the Joint Report of December 2017…

On Tuesday, Brexit coordinators from 27 member states were briefed by Stephanie Riso, a senior EU Task Force official.  She told diplomats that there was nothing on the table from London.

“There are no concrete proposals,” said one official briefed on the meeting. “Nothing has been put on the table, not even really a proper sketch or hint of a plan. We’re waiting. But for the moment there is zilch.”

It was also becoming clearer Johnson was reneging on the Joint Report commitments to protecting the all-island economy and North-South cooperation. “It’s moving from frictionless border to as little friction as possible,” said the official, “which is not the same thing.  That would have a huge impact on the Northern Ireland economy.”.. Indeed, drowned out by this week’s Westminster drama was sharper evidence of the potential impact of a No Deal Brexit on Northern Ireland.

On Wednesday, Karen Wheeler, the former head of the UK’s Border Delivery Group told the Commons Brexit committee that London’s plan not to impose any checks or tariffs on goods coming in from the South would cause problems “within days, even hours” for Northern producers. Such a scenario would only be sustainable for “a number of months”.

In another chamber, Andrew McCormick, the top civil servant in the Executive Office warned of the social impact this would have.”.. If there’s No Deal there is a hard economic border immediately,” he told MPs. “All trade [in the South] has to comply [with EU single market rules] or be illegal. If there are no checks there’s no legal basis to trade. So our producers would be unable to export to the south unless they pay the tariff, and the tariff would make them unviable.”

Senior figures in the Northern Ireland Civil Service have been issuing increasingly stark warnings to Whitehall about the impact of No Deal on Northern Ireland, with mixed results.

“Officials have got it and understood it,” says one source, “and some are saying it to ministers privately. There’s still a bit of denial at ministerial level. It just doesn’t suit their narrative that No Deal is manageable.”

Amid such intensifying anxiety Dublin, Belfast and Brussels are all wondering what Boris Johnson’s ultimate plan for the Irish border is….

His chief negotiator was vague about what would replace the backstop if, as London is demanding, it is stripped out of the Withdrawal Agreement, but the assumption is that Johnson will push for some concoction of what are known as “alternative arrangements”….

Dublin and the EU have a fundamental problem with alternative arrangements.

That is, that whereas the backstop reconciles Brexit and the Irish border in a holistic way, with a blanket solution that would mean both sides of the Irish border following the same rules, alternative arrangements, on the other hand, takes as the starting point the reality that both sides of the border would be following different rules…

if the backstop is replaced by alternative arrangements then the rules on both sides of the border will be different. That means the authorities will need to know what is crossing and how to prevent it crossing, if necessary.

The border then becomes harder, with more controls, more inspections, higher levels of surveillance, the use of approved and unapproved crossing points and so on.

Smartphone apps, barcode scanning, Radio Frequency Identification systems, GPS tracking, drive-thru X-ray scanners are all coming on stream in the management of borders globally, but they all require cost, personnel and infrastructure…

How close is London to putting forward concrete proposals on alternative arrangements?

The process appears to be fraught with the complexity of getting all of Whitehall familiar enough with the issues in an Irish context in order to put forward credible ideas that the EU, which is already sceptical, will simply reject because they don’t pass the five tests.

There are also signs of unease among external experts in the technical advisory group that the group risks providing Boris Johnson with the cover that he is serious, especially since he seems in thrall to the non-government Alternative Arrangements Commission.

One member of the technical panel is alarmed that, given the evaporating time frame, there is no sense of urgency, pointing out that there have only been two plenary sessions and three workshops since it was launched in March.

“If they were serious they would have called group meetings urgently, around the clock, to consider these things in all seriousness and detail,” the expert says, “but there’s been no sense of building on the expertise”.

However, another panel member takes a more sympathetic approach. “The civil service have been very engaged,” the expert says. “They’ve had Michael Gove, Steve Barclay along, relatively senior people. When you’re in those meetings it feels like they’re taking it seriously.”

One member of the panel believes that what he calls a “less structured approach” is down to the fact that Whitehall is having to move faster than the civil service normally does. He also believes it is vital that he can cast a cold eye over ideas that simply won’t work.

“Some of the things tabled raised my eyebrows but it may be necessary that they’re tabled in order to once and for all draw them to a conclusion,” he says. “Perhaps they need me to slaughter the unicorns to make sure they are slaughtered.”

For now the opening exchanges between David Frost and the European Commission give little hope that an agreement can be reached by the end of October, notwithstanding the parliamentary efforts to rule out a No Deal exit.

There is increasing speculation that Boris Johnson could be forced to revert to the Northern Ireland-specific backstop. That would at a stroke remove the claim that the UK is being trapped and unable to pursue an independent trade policy and the Commission has let it be known it’s a change they could make overnight.

The DUP would be furious, but there are precious few options remaining. It may be conceivable that some “alternative arrangements” could simultaneously be given a higher status, with the option that they might take over some of the role played by the backstop.

“The UK is in such a bind at the moment that they may need something,” says one source close to the alternative arrangements activity, “something that gives confidence to those who are worried that the EU have trapped the UK and it can’t get out”.

Boris Johnson has talked about an all-Ireland animal health and food safety regime, and hinted there such an idea could extend to industrial goods.

The problem is that there is no detail on this, and also that the more he heads in that direction, the more it starts to look like the backstop.

Connelly’s technical points refer to the most comprehensive analysis of the various alternative border arrangements produced last week by Katy Hayward the leading expert from Queen’s