With a no-deal Brexit becoming more likely by the day, serious reservations are increasingly being expressed in relation to the Irish government’s backstop policy. A small but growing number of critics have argued that if the backstop itself is what could cause a no deal, perhaps the government ought to rethink. Otherwise, they warn, a measure designed to prevent a hard border could end up bringing one into existence through a no-deal Brexit on October 31.
Given these calls, it is worth considering what compromising on the backstop would look like in practice. It would not involve renouncing the demand that Brexit ultimately result in the retention of a soft border between North and South. It would simply involve changing the stage in the process at which this issue was addressed.
Until now, the Irish government and the EU have insisted that the border issue must be dealt with in the first phase of negotiations. That is the agreement in relation to Britain’s departure from the EU that is concluded using Article 50 of the EU treaty and which covers issues like how much money Britain owes the EU and the rights of EU citizens in Britain.
The EU has been equally clear that the future trading relationship between Britain and the EU can only be addressed in the second phase of negotiations. This is for both political and legal convenience. The EU does not want Britain to be able to use threats such as refusing to pay its bills in the trade talks – and under EU law trade agreements need to be ratified by each member state, while an Article 50 deal needs only a vote from a weighted majority of states in the European Council.
So, what would happen if the Irish government agreed that the border issue could be dealt with in the second phase instead of under the Article 50 deal?
The first benefit would be that if Britain ratifies the Article 50 deal, it enters a transition phase during which a trade agreement would be negotiated. Britain would remain bound by EU law, thus keeping the open border with the North until this transition phase ends.
The transition phase expires on December 31, 2020, but it could be extended by mutual consent. Trade lawyers are unanimous in their view that a Britain-EU trade agreement would take a minimum of five years to agree, so the period would probably be extended until the mid-2020s at the earliest. With British politics in such turmoil, anything could have happened by then, including the replacement of the Tories by a more soft-Brexit or even a Remain government.
What is more, in these trade negotiations, Ireland, like every member state, would have a veto. This is unlike the Article 50 agreement, whereby Ireland has been relying on the support of fellow member states to insist on the backstop. In the phase-two trade negotiations, Ireland could veto any deal that does not secure an open border.
There are, of course, downsides to compromising in this way. Doing so would reward the Johnson government for its intransigence. Ireland could risk looking foolish by climbing down, having been so insistent that the border issue absolutely had to be dealt with in phase one. Our EU partners may also feel that the EU’s negotiating credibility would be undermined by giving in on this issue, having stated on endless occasions that the withdrawal agreement was not open for renegotiation. The second-phase trade negotiations would also cover many issues of particular concern to other member states, so the border issue would risk becoming just one of many negotiating points between the EU and Britain.
It would certainly be emotionally difficult to endure the crowing of Brexiteer hardliners about how Ireland and the EU had blinked. It is also now uncertain that Britain would not ask for even more concessions. While compromising on the backstop would probably have pushed the withdrawal agreement through in the spring, there has been a radicalisation since then. Boris Johnson is now fixated on winning over Brexit Party voters, so he may be afraid of signing up to any deal.
However, while there are no guarantees that compromising would ultimately pay off, what are the alternatives? Certainly, the government should keep its cards close to it chest for the moment. There is still the possibility that a caretaker prime minister could be installed by the British parliament in September, who could ask for an extension of Article 50 followed by a British election.
However, if Johnson is still in office in mid-October and it is clear that he is going for a no-deal Brexit because he cannot swallow the backstop, then the Irish government will be facing the certainty that insisting on the backstop will bring about the very hard border it was designed to prevent.
In those circumstances, if avoiding a hardening of the border is truly the number one objective, is it not better to go for the chance of preventing a hard border in phase two rather than guaranteeing a hard border by insisting on the current policy?
Ronan McCrea is professor of constitutional and European law at University College London