The UK parliament has now requested the EU replace the crucial backstop protocol in the Brexit withdrawal agreement with some unspecified “alternative arrangements.”
The UK reversing course on a deal agreed after two years of negotiations was never likely to go down well with the EU27 and the immediate negative response from Donald Tusk suggests there will be no re-opening of negotiations.
Simply ignoring this latest request may work out for the EU. After a few more weeks without progress, enough MPs may finally decide that the impending chaos of no deal is worse than the deal Theresa May agreed to in November and which is still on the table and it would be reluctantly passed.
There are a number of reasons, however, why the EU, and particularly Ireland, should be wary of pursuing this strategy and I suggest they should consider an alternative route involving a clarification and a concession on the backstop.
First, without further negotiations or concessions, it is possible that the UK parliament may end up delivering a no-deal outcome that very few profess to want.
In the absence of a deal that can pass the House of Commons, even after a potential delay of the Article 50 process, the no-deal crash out becomes the default option and odds on it continue to rise. The EU member state that would be most damaged by this outcome would be Ireland.
Second, the strategy of providing no response to the Brady vote could poison EUUK relations and their NorthSouth equivalent in Ireland for many years even if the November agreement is eventually passed.
Many in the UK will feel, rightly or wrongly, that they were bullied into the agreement by the EU without appropriate considerations for the perceived problems associated with the backstop.
In Northern Ireland, the DUP will claim the backstop was imposed by the EU against the preferences of a majority of the House of Commons. Unionist objections about a lack of democratic legitimacy of the backstop, in which Northern Ireland remains subject to EU regulations and customs rules but has no say in deciding those rules, will continue to be a cause of discontent.
So what could the EU do to respond to Tuesday evening’s vote?
Firstly, the EU could clarify that it has no objections to the UK leaving the joint customs union with the EU after the transition period, provided Northern Ireland remains within the EU’s customs union and aligned on goods regulations.
Brexit wonks could argue that this clarification shouldn’t really be necessary since this is the original version of the backstop that the EU offered, so it should be clear they are willing to still offer this.
The all-UK backstop was a hard-won concession to the UK. It reduced the amount of trade disruption to be experienced over the medium-term by the UK and prevented the need for customs checks on goods going from Great Britain to Northern Ireland.
Still, the nature of the all-UK version of the backstop does not seem to have been well understood in Westminster, partly because Theresa May never spent any time explaining its benefits.
Instead, among Brexiters, it has become widely held that this all-UK backstop is an attempt to “trap” the UK permanently within EU structures and hamper it from successfully negotiating its own trade deals.
A simple clarification from the EU on this issue, to be added to the political declaration, could help to resolve this unnecessary confusion about the all-UK backstop.
That still leaves the question of the Northern Ireland element of the backstop. Can anything be done to ease British concerns? The motivations of the EU and Irish government for the backstop proposal are well known and there are severe limits on how much they can move.
Moreover, the nebulous mooted “alternative arrangements” to the backstop mentioned in the Brady amendment don’t present a useful basis for current discussions.
However, the EU could do the following: use the political declaration to offer the UK a potential exit from the Northern Ireland aspect of the backstop via the use of a future referendum within Northern Ireland asking whether its citizens wanted to remain within the EU’s customs union and single market.
This could be held five years after the beginning of the operation of a Northern Ireland-only backstop and repeated at perhaps ten-year intervals thereafter. Should a referendum show the people of Northern Ireland wanted to exit the backstop, the EU would agree jointly with the UK to end this arrangement.
This proposal would give the citizens of Northern Ireland a number of years to experience “life in the backstop” and to consider the benefits and costs associated with it before making their own decision about whether to continue with this arrangement.
I have detailed previously how the backstop would provide important benefits for the Northern Ireland economy and how the perceived intra-UK frictions associated with it are likely to cause minor difficulties compared with the problems associated with a hard intra-Irish border.
The costs and benefits of being excluded from future UK trade deals may also become more apparent. I suspect it may turn out that Northern Ireland consumers and farmers won’t actually be too concerned about missing out on the chlorinated chicken and hormone-injected beef.
The Irish government and EU could also offer to work to address concerns about the “democratic deficit” associated with the backstop. It may be possible for Northern Ireland to have non-voting members of the European Parliament or for the Irish delegation of MEPs to include a couple of delegates elected via votes from those in Northern Ireland.
Another benefit of this proposal is that it would allow at least seven years for the UK and Irish governments to explore the options for “smart border” technologies which have been widely promoted by some and heavily doubted by others.
My guess is that no matter how smart the technologies, a hard border of some sort would be required if the backstop is removed but this proposal would give Ireland and the EU at least seven years to prepare for this potential outcome.
The danger of this approach from the perspective of the Irish government is that it may only kick the can of a hard border down the road by seven years or more. But it may also help to avert a no-deal Brexit and provide invaluable time to prepare Irish firms for potential future arrangements.
One could also argue that if the backstop arrangements cannot receive majority support in Northern Ireland over time, they are probably not politically sustainable anyway.
Would this work?
I suspect the DUP will not accept a proposal of the sort outlined here but these ideas may be enough to convince sufficient numbers of Tory waverers and Labour leavers that the EU and Ireland have listened and addressed their concerns about the UK’s ability to conduct future trade deals and the democratic legitimacy of the backstop for Northern Ireland.
This may be enough to persuade a majority that the deal on the table represents a better outcome than no deal. A final effort of this sort from Ireland and the EU could hopefully also set a tone for a more co-operative future relationship with the UK.