The EU would apparently prefer the UK to fall into no deal rather than compromising on the Northern Ireland backstop, writes Simon Witney. 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.
Jean-Claude Juncker in 2017. Photo: European Council via a CC-BY-NC-ND 2.0 licence
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.
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Note: This article first appeared on our sister site, LSE Brexit. It gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics.
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Simon Witney – LSE
Simon Witney is a Visiting Professor in Practice in the Department of Law, LSE.
If you put a time limit on the backstop, it is no longer a backstop.
There is some logic here. If the EU digs in and the UK leaves with no deal, that would be worse than the UK leaving with a watered down backstop. It’s like choosing the certainty of a hard border over a solution where there’s simply a small risk of a hard border. It doesn’t make sense on those terms.
But it does make sense if you consider that the EU doesn’t really care about the backstop so much as it cares about other issues. Maybe the aim is to stand up for Ireland, to lay down terms to the UK, or simply it reflects the fact the EU thinks it doesn’t have to compromise because the UK will do so anyway. Either way, it’s probably logical, it’s just they aren’t being straight about their real motivations.
Some other points need to be considered I believe:
1) The EU did provide additional legal assurances on the backstop that were included in the WA early March; a commitment to “working speedily” to agree by end-2020 alternative arrangements to the backstop is now specifically included. The Prime Minister and the EU both approved the WA in November – why didn’t she foresee that this was going to be an issue or consult Parliament beforehand?
2) If the EU agrees to reopen the WA to re-discuss the backstop, this opens the door to further demands for renegotiation of other issues (e.g. the financial settlement).
3) At this stage it seems that party politics better explains the failure of the WA rather than fundamental disagreement over the backstop; the post suggests that revisiting the backstop will solve all issues and secure a positive vote, but in my opinion this is not a given…
4) Another irrational aspect of the debate in the UK is the mix up between the future relationship and what the WA is actually about, namely defining the terms of the exit and introducing transitional provisions until we have a new framework in place; the WA leaves all options on the table regarding the future relationship (no-deal Brexit, customs Union, Canada-style FTA etc.), especially since the EU does agree to re-open the political declaration. Somehow however the debate seems to focus primarily on next steps instead of considering the actual objectives of the WA.
Maybe if the UK actually would comply with the deal and agreement (and its own proposals) that it negotiated in good faith it would make the EU believe in the UK more. The UK, despite constant overtures by the EU, has zero credibility and shown that it will no be able to enact agreements. The negotiations were concluded and finished…now the UK, for domestic political reasons is blaming the EU for its own (UK’s) proposals. Live on the Irish border, have experienced the lives of people who are there every day and had to deal with the horrible lives under pre-Good Friday Agreement Northern Ireland, then come back and comment from a position of understanding. Barnier was a raconteur for the Commission on the Irish GFA and border (which by the way the EU is a guarantor for along with the US) so is well aware of the EU’s legal responsibility here and to one of this own members (not the UK …right?) If the UK have an internal domestic issue complying with international treaties (GFA) then there are bigger issues. The GFA is also a legally binding treaty and interplays with the Treaty between the REPUBLIC of Ireland (deliberate inference there) and the Kingdom of Great Britain and Northern Ireland. Just because you don’t get what you want and feel it’s easy to push the island Ireland off a cliff for your own domestic issues….Welcome new dawn of being a medium power state in a multipolar world.
The Backstop is an insurance policy against a failure in trade negotiations.If the Trade negotiations are successful then it will not apply. If they fail it becomes essential. Given that the UK is unable to ratify a withdrawal agreement the chances of the UK ratifying a trade deal may seem low.
I would remind all that the backstop was something that the UK requested because they had no concrete proposals to resolve the conflict between England a Wales decision (and as a consequence the overall UK decision) to leave the EU and the Belfast/Good Friday agreement
There is a majority in Northern Ireland to remain in the EU.
The EU position is clear. If you agree to harmonise the trade rules on the Island of Ireland then by default the Northern Ireland Trade rules must align with the Republic of Ireland. This implies that Northern Ireland trade rules must also along with those of the EU.
I think you may be flogging a dead horse.
Have you considered the possibility of allowing and indeed encouraging the people of Norther Ireland to take the opportunity to decide on their future trading relationships?
For me, the fact that the UK is making a big issue out of the backstop indicates that, in the absence of a backstop, the UK wouldn’t hesitate to raise a hard border between NI and RoI. Or with other words, the UK wouldn’t hesitate to finish off the GFA, which has already been badly holed by Brexit anyway. This isn’t acceptable to the EU or the RoI. The EU and the RoI have correctly concluded in my opinion that there are better off forcing a crisis over the GFA early on, rather than have a similar crisis during the negotiations of the future relationship.
The EU is defending a peace treaty. Irrational? Meantime, the USA will also defend the same treaty. So if we take the EU’s approach at face value, it’s the same as HMG’s approach. The UK will not damage the GFA.
It isn’t irrational when one considers that both the EU and UK do NOT see “no deal” as a permanent end-state. It would be the outcome of the failure to agree to a withdrawal agreement but both the UK’s and EU’s politicians expect that after no deal has occurred that the UK would begin negotiating with the EU on a new relationship, however here the difference is that the EU’s politicians have already spelt out that in the event of no deal happening and the UK coming back to the table, that ANY new agreement would incorporate the key elements from the withdrawal agreement, namely the sections on citizens rights, the financial settlement and the backstop. So the EU is basically aiming for no hard border as the permanent solution and is willing to risk a temporary hard border to get there. The alternative is accepting a potentially permanent hard border with a temporary no border solution. This would not be in the EU’s interest because once the EU accepted the possibility of a permanent hard border it would be very hard to get the UK to budge and go for no hard border again. So if a permanent hard border has to happen anyway, it makes more sense from the EU perspective that it only happens without them having ever accepted it in principle.
Compromise can only grow based on trust that the result of negotiations will be honored by both sides.
You do not compromise with a buffoon.
Lacking any inner-British consensus about the common interest of the British nations and the classes, there is nothing to be gained from external trade negotiations and in particular from compromise on the fundamental issues in the WA.
So why cannot RoI harmionise rules with NI and the EU check all goods arriving from NI?
It is the EU backstop and their problem.
UK will flout WTO rules and wait for a complaint and resolution: 15 months to 5 years..
The EU will not wait. They will insist on a hard border. RoI will break the GFA and it is dead.
The only solution is Irexit.