Is the Backstop a Red Line Too Far?

The arguments against the use of the backstop are that it was a strategic mistake: it was absolutist and had such large constitutional implications as to make it unacceptable to a majority of politicians in the UK. O’Brien states that ‘there is a big difference between devolving powers to a region on issues like abortion and tax rates on the one hand and, on the other, placing a region in the market of another jurisdiction’. He continues: ‘One of the extraordinary things about it is how little questioning there has been about the costs and risks of what has been one of the biggest foreign policy decisions in the State's history’. According to O’Brien, either the UK government, or the EU and Irish government will have to do a u-turn and there is no leeway for a non-zero sum outcome that typifies stable bargaining outcomes.

This author found the above critique of the backstop brave in an Irish context and stimulating, but also parsimonious. As regards constitutional differences, the consociational Good Friday Agreement is in marked contrast to the rest of the UK’s system and while its powers are not akin to those of the EU in the Single Market, it is nonetheless of fundamental constitutional significance. Therefore, it is not unimaginable that the backstop provisions could be accepted in the UK, where Northern Ireland was not thought about  at all until the Irish government succeeded in ensuring that it would be  central to the Brexit negotiations. Indeed, many of the ERG group appear to put English nationalism  before maintaining the Union.

Secondly, there are possible paths of compromise even with the backstop. The Democratic Unionist  Party (DUP) seeks more of a say for Northern Ireland in the future EU-UK decision-making process and that appears to be one of the bargaining chips being used at present, although the Irish government has stated its opposition to any DUP veto over decisions. In addition, the Political Declaration could be revised to move the EU-UK negotiations swiftly on to agreeing a future beneficial trade relationship, thereby almost making the backstop and the future relationship part of one package as the UK government wanted all along. This would signify compromise, but not of the backstop. It would also render the backstop redundant if a rich and open trading relationship was ensured.

In other words there are imaginative solutions possible to reach an orderly withdrawal deal, especially as the UK parliament has voted by majority against a no-deal Brexit in any circumstance and has also voted for an extension of negotiations.

Finally, though counter-factuals are always speculative, what would have been the outcome in the absence of the backstop issue? The most likely scenario is that the negotiations would have occurred simultaneously as the UK government wanted. In other words, rather than the future relationship being negotiated only after the withdrawal agreement had been agreed, the border issue would have been discussed simultaneously with the future trading relationship. This ostensibly makes good sense. However, from the start the Irish government opposed the simultaneous approach on the basis that the UK government would use the Northern Irish issue as a pawn to gain trade benefits from the EU while not staying in the Single Market. It already seems a long time ago since Boris Johnson referred to ‘the cake and eat it’ approach, but it was in that context (and before Boris Johnson flagged it) that the Irish government was insistent on sequential negotiations.

These Machiavellian suspicions were not un-founded. Northern Ireland did not feature at all in the run up to the Brexit campaign. This author remembers watching BBC Newsnight’s analysis of the regional implications of Brexit and waited in vain for a full discussion of Northern Ireland.

It did not feature after the referendum either until Sinn Fein called for a border poll and the Irish government became more vocal. Even after the EU stated that Northern Ireland and the Good Friday Agreement would be key bargaining priorities, there were many voices heard in the UK who believed that the EU’s commitment to the backstop would not hold and that agreeing a suitable ‘divorce bill’ was more important.

In fact what O’Brien calls an Irish mis-perception that some people in Britain did not know or did not care about Northern Ireland does not seem very far off the mark. The significance of a hard border in re-opening old wounds and increasing insecurity did not seem to be appreciated by many in the UK media and establishment. Again in that context, the Irish government’s  firm and consistent commitment to the backstop seems sensible – the soft border could easily slip down the agenda and could easily be sacrificed in a complex bargaining situation unless it was clearly prioritised as a red line.

So is the backstop a red line too far? Clearly this author could be accused of the same ‘group think’ noted by Dan O’Brien, but when faced with the chaos of Westminster, the lack of regard shown to Northern Ireland from early on and the UK’s weak engagement with the Irish government, it is difficult to see how any other course of action would have concentrated UK minds on the need for peace and stability in Northern Ireland. But time will tell.

Dr Etain Tannam is associate professor International Peace Studies, Trinity College Dublin and is editor of ‘Beyond the Good Friday Agreement’, 2018 (London Routledge), and is currently writing a book ‘British-Irish Relations in the 21st Century’, (Oxford, Oxford University Press, 2020, forthcoming).

This article is part of an ongoing blog series ‘Brexit Countdown’ by the Political Studies Association (PSA) and Political Studies Association of Ireland (PSAI).  

To read the entire series, please see below:

1. What’s the likely impact of Brexit on Higher Education in Northern Ireland? by Cathy Gormley-Heenan
2. Brexit and a second Scottish Independence Referendum: What happens next? by Margaret Arnott
3. What's the difference? British and Irish attitudes towards the EU by Kathryn Simpson
4. Brexit and devolution in Wales by Roger Awan-Scully
5. The Backstop: a ‘flexible and imaginative’ solution? by David Phinnemore
6. Culture, the arts and Brexit by Kate Mattocks
7. Brexit and implications for Scottish Devolution by Nicola McEwen
8. Is Brexit propelling Northern Ireland towards Irish unity? by Katy Hayward
9. Blair and Brexit by John O'Brennan
10. The looming possibility of a retaliatory relationship between the UK and the EU by Will Phelan
11. Brexit: Ethnopolitical dimension by Timofey Agarin
12. Irish-British relations: Preparing for momentous change by Paul Gillespie
13. Brexit, gender and Northern Ireland: Changing the state-society relationship by Yvonne Galligan
14. Beyond the backstop: the DUP’s role in Brexit by Jon Tonge
15. Brexit, political parties & power-sharing in Northern Ireland by Sophie Whiting
16. Brexit and devolution in England: What's at stake by Arianna Giovannini
17. What do people in Northern Ireland think about Brexit? by Jamie Pow and John Garry
18. Brexit, diplomacy and defense by Ben Tonra
19. Empathy, minorities and Brexit by Richard English
20. Young people and Brexit: Not all that we think by Emily Rainsford
21. Is the Backstop a Red Line Too Far? by Etain Tannam
22. The UK's view of the EU by Simon Usherwood
23. The invidious impact of Brexit on Ireland's policy landscapes by Mary C. Murphy
24. Looking into the abyss: A European perspective by Brigid Laffan
25. Britain after Brexit by Anand Menon
26. Brexit as Political Irony by Feargal Cochrane
27. The Brexit Countdown Series: Some concluding thoughts, and an appeal by Muiris MacCarthaigh and Feargal Cochrane