The EU would apparently prefer the UK to fall into no deal rather than compromising on the Northern Ireland backstop, writes Simon Witney (LSE). The stand-off could end if the EU were prepared to accept a second-best alternative.
The European Union’s position in the Brexit negotiations, if one takes it at face value, is self-evidently irrational. It is remarkable that this fact has been largely overlooked in the recent public discourse, and even more remarkable that there now appears to be almost no pressure on the EU to compromise.
The EU’s position appears to be that it would rather the UK left without concluding a Withdrawal Agreement than to reopen any aspect of the current text, including the Northern Ireland backstop. As often repeated, that backstop would ensure that there will never be a hard border between the north and south of the island of Ireland. But if the negotiators were to revisit that part of the Agreement so that, for example, a lengthy transitional period guaranteed no border for several years and all parties were legally committed to working towards a “no-border” solution in the meantime, the revised deal would surely pass the UK Parliament.
So the logical effect of the EU’s position is that they would prefer a border in the coming months (a requirement of EU law and necessary to protect the integrity of the single market) than the much softer alternative that is on offer – not an absolute guarantee, but a good chance of no border ever, and plenty of time to plan for and mitigate the impact should some border checks ultimately be required. To choose no deal over that alternative would be very difficult to understand. And yet, some European leaders even say they expect no deal, while refusing to countenance any suggestion that they could alleviate the problems that this would create in Ireland by seeking a second-best alternative to the backstop.
Irrationality is not the most likely explanation, of course. No doubt the EU negotiators held the view, which is still likely to prove to be correct, that the UK would eventually accept the backstop, or choose some alternative course, rather than leaving without a deal. That the UK has not yet done either is highly regrettable, and the largest share of the responsibility for the current position must lie with the British government and the UK Parliament.
But given where we are, it is very surprising that there is not now more pressure on the EU side to compromise, which would clearly be in its own best interests, rather than allowing Europe to come so perilously close to a no deal outcome. One might expect that pressure to come from all sides – but particularly from Ireland, for whom the stakes seem especially high.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Simon Witney is a Visiting Professor in Practice in the Department of Law, LSE.
1. The backstop seems to have evolved largely to meet Mrs May’s wishes. If she can’t get that through parliament, there is no reason to believe that she can get anything else through.
2. The Brexiteers have spent much time coming up with unicorn solutions. There is no reason to believe that any of them exist and no desire to have more time wasted.
3. There is little reason to believe in the realism, competence or goodwill of any Brexiteer successor to Mrs May and thus little reason to believe that an acceptable solution will ever emerge.
4. However, remember that the backstop is a backstop: the prospect of developing a better alternative is already there and, over the ten or twenty years it will take to negotiate free trade and other agreements, there will be plenty of time for that to happen, without the distortion of a deadline.
5. And if the UK leaves with no deal, and Northern Ireland farmers find themselves swimming in unsaleable milk, the UK may be minded to begin negotiations on trade and other agreements. The EU will be happy to do that — as soon as the UK agrees on the three elements of the withdrawal agreement, including acceptable arrangements for the border.
bjg
As a firm remainer and “people’s vote” campaigner I have a lot of sympathy with the view expressed here. If a further referendum becomes undeliverable it is crucial to avoid the catastrophe of “no deal” – meaning no withdrawal agreement – becoming the only alternative. It particularly concerns me that noises are being made, particularly on the Irish side, trying to reassure people that some way will be found to maintain an open border in Ireland even in the event of no deal. If there is a way to do this surely it should be revealed now. It would be highly reprehensible to do so only after the UK had crashed out. Even self interest should tell that to both Ireland and the rest of the EU. The malign consequences of no deal would hit the UK most but would also cause great damage to the EU, particularly Ireland, going far beyond the issue of the border.
Of course the EU would compromise if they thought the only alternative was no deal.
However despite the rhetoric they attach zero probability a no deal outcome.
So then we look at their ‘payoff matrix’ – the ideal outcome for the EU is ‘Norway’ the UK pays, follows the rules and no longer has any input to block federalization.
Second preferred outcome is the UK remains in the EU
Third preferred outcome the WA.
Doing anything to increase the likelihood of the UK agreeing the WA is thus against the interests of the EU as they know if the WA is not agreed and the UK will not go with no deal then the only options are the preferred Norway and remain.
Thus if the EU are correct that no deal has a zero probability then why on earth would they sweeten the WA?
@michael. You’ve obviously not been paying proper attention. A “Norway” deal requires a Withdrawal Agreement. The only outcomes with a WA are a no deal brexit or no brexit. The EU 27 may differ on what they would like the final outcome to be, but they are united that if we leave it must be with a WA.
Ooops. The middle sentence should read “The only outcomes WITHOUT a WA are a no deal brexit or no brexit.”
I see several potential flaws in this quick take. Firstly it is taken for granted that “surely” any revised deal would “pass the UK parliament”. Given how difficult it has been for parliament to pass just about anything Brexit related, this seems like a very shaky foundation upon which to go for renegotiation. Secondly, since the withdrawal agreement’s transition period itself can be extended for an undefined amount of time (XX years), there actually isn’t any need to revise the Agreement. If the UK were REALLY going to be able to go for this then all the parliament has to do is pass a motion asking that the extension envisioned for the Withdrawal agreement be defined as last for say….12 years. Why would the EU say no to this? And since the length of the one time extension isn’t specified then it is entirely possible under the current withdrawal agreement.
Thirdly, choosing no deal is difficult to understand only if one considers the no deal WTO exit to be the long term future. As Sir Ivan Rogers noted recently, neither side sees this as the case as they both realize they will have to negotiate some form of relationship in the future. And this is where the EU’s position makes sense – they are likely wiling to accept a temporary re-imposition of border controls between NI and the Republic of Ireland for however long it takes the UK to come back to the table in order to avoid what Professor Whitney acknowledges is merely a non-guarantee of a softer alternative with only a “good chance of no border ever”. The alternative will actually likely result in some form of hard border as the permanent outcome. In which case the EU may as well go for No Deal anyway since that also results in the same hard border, but comes at a much higher cost to the UK than this alternative (which oddly is never fleshed out). And recently the EU have made it known that in the event of a No Deal brexit, there will be pre-conditions for the UK when it comes back to the table to negotiate a post-Brexit deal, namely (1) citizens rights, (2) the money owed for the last budget cycle (not just the annual budget but the cycle that ends in 2021) by the UK and (3) dismantling the hard border on the island of Ireland.
So the long term outcome is either: (A) accept the withdrawal agreement with these 3 things in it and get a transition period to smooth the exit or (B) crash out in a No Deal Brexit and then negotiate a new agreement that has these same 3 things in it but not having had a transition period to smooth the exit.
The backstop cannot be changed because this would compromise the Single Market and its 4 Freedoms, one of the key achievements of the EU. The EU is not sacrificing this, which benefits 500 million people, for anything, least of all for something as badly thought through as Brexit. I am intrigued that a visiting Prof of LSE does not seem to understand this. Changing the backstop would leave the EU border open to unregulated imports etc. Not going to happen! https://en.wikipedia.org/wiki/European_Single_Market
Hold on a minute.
Aside from not even knowing what a backstop is, your arrogance is what has gotten your little divided island to where it is today – the laughing stock of the globe.
You partitioned Ireland, divided it and planted it with loyalisst to the crown, starved over 1 million people to death while ruling the country and then strong armed the partition of Ireland resulting in civil war. 800 years of death and misery wrought on our island because of your ‘global trading’ brexiteer descendants.
Those same loyalist planters descendants sit in Westminister today – the flat earth DUP party and you wonder why you can’t get buy in from the Irish to stiff them and their people on another English border.
The partitioned province of Ireland voted remain, it is the farcical Torybluekip brexit referendum, not a single bit of respect for the Island or the devastation your Tory UKIP brexit will do to not only your own economy but that of your badly treated neighbour.
One thing I know for sure, the horrible reputation of the English as bad as it was, it is now rancid – you can get out of Europe as fast as you can, you misjudge the will of Europeans and Ireland in how we will prosper the further we get away from such a horrible bunch who having voted into Europe have tried to block and damage your neighbours for 40 years. You are truly the lame ugly duck of the globe.
I suspect the Irish would rather be starved again than capitulate to your right wing brexiteers and their nasty divisive policy of partition that evidently flourishes to this day in the modern day form – known as Brexit.
Good luck with those big trade deal you will be negotiating on your knees, close the door on your way out, have fun and head off down spoonies to sing ‘Rule Britania’ boasting how you slave traded your way to glory.
Your proposition has one major flaw and that is that anything other than a full free trade agreement between the UK and the EU is irreconcilable with the Good Friday Agreement. Time is irrelevant and agreements that say we can sort it out in 5, 10, 15 , etc., years are meaningless. What happens if it is not sorted out (and has already been pointed out that would mean the need of a full free trade agreement)? Eire and N Ireland would have, if not a ‘hard border’ a fiscal border, estranging N Ireland Eire, or from the rest of the UK.
There is only one certain way of preventing this and that is for the UK to remain in the EU.
The unfriendly machinations of the EU are plain to see. What is worse in my opinion is that it has become clear that the Uk is not a democratic society, the voters want one thing the establishment wants another. Quitin Hogg in the 1970 pointed out that we live in an elective dictatorship, in other words parliament can do what it wants wh en it wants to who it wants. Our only response is to wait for a general election. The disgrace of the current state of Brexit is a testament to this.
The roots of the EO go back to 1942 when the Nazis made their plan for after the war. In most other advanced democracies it is the elected politicians who make the rules and the civil service carries them out. If they make a rule you do not kike then at the next election you vote for the other lot. Not in the EU, the commission is appointed. The EU is therefore by definition a fascistic s organization, the elite make the rules. The EU parliament is basically toothless against the Commission. It would now seem that we too are a fascistic society, Do as your betters tell you. QED.
You have to be a Kremlin bot
The comment is reflective of Rees-Mogg’s “perfidious Albion” comment April the 2019. It is English (although Albion refers to the island of Great Britian., excluding NI
From a legal perspective and treating the two applicable treaties (even though the Withdrawal agreement isn’t yet ratified) the EU is taking the Belfast AGreement as equal to the Withdrawal agreement and applying the old equitable Maxim – where there equities are equal the first in line prevails –
It is questionable whether the DUP are negotiating on the same basis as HMG as their position is to renegotiate the Belfast Agreement and May’s government ceded this opportunity early when seeking their support. The DUP could expect to use the Vienna Convention to attempt to vitiate the Belfast Agreement.
On the other hand, there is no reason for the 27 to support the UK over.a remaining Member State, there is no basis for the opinion expressed by the author,
Witney advances a prescriptive “this is how Europe should react to Brexit” approach that echoes some Conservative arguments that call for flexibility on the part of the EU in ongoing negotiations.
He fails to propose a compelling reason for why the EU should be lenient towards a state that has expressed a clear desire to leave the political, economic, and social project of the European Union. Doing so would fundamentally undermine trust by other states in the integrity of the EU and cause further uncertainty and the desire to swiftly conclude one errant departure (led by a government that continues to demonstrate erratic and exception-seeking behaviour from a strategically weaker negotiating position) must not be exploitable for further departures.
Expecting and desiring the EU to compromise on Ireland is an amateurish position that highlights basic misunderstanding of the EU’s message thus far: “we will protect our member states”. It continues to reflect an ideological position, rooted in the perception of global power and influence inherited from a “glorious” Imperial past, that does not reflect the reality of Britain’s place in the modern and interconnected world in which we live today.
Europe would likely be better positioned to absorb and mitigate the effects of a no-deal departure than the UK. Europe’s attention to Ireland is a more optimistic approach to Eire than Britain has seen fit to give it since before the Good Friday Agreement – perhaps now Britain will find itself “beyond the pale” instead?
@G. The EU leadership has not necessarily done itself a favour by being most un-statesmanlike in its pronouncements on the Brexit referendum and its part in the negotiations.
Europe should look for a no deal. Macron has finally realised that. Well done.