Reports from London and Brussels suggest that the British government will seek guarantees or declarations about the future of the backstop.
There are several examples of the EU offering such guarantees – including to Ireland.
Following the defeat of the referendum to ratify the Nice treaty in 2001, during which campaign the issue of threats to Ireland’s traditional policy of military neutrality gained significant traction, the Irish government made what became known as the “Seville Declaration” at a meeting of European leaders in the Spanish city.
The government declared that Ireland's policy of neutrality was not affected by the treaty, that any treaty which did would be subject to a future referendum and that the deployment of the Irish Defence Forces abroad would be subject to UN approval for the mission, a decision of the government and the approval of the Dáil – and arrangement that has become known as the "triple lock".
In response, the leaders of the other EU countries responded with their own declaration, which “took cognisance” of the Irish position. It noted that the Nice treaty did not affect the State’s position of neutrality and concluded “Ireland, in its national policy statement, has clearly set out the position in this regard”.
No legal force
Armed with the declarations, Bertie Ahern’s government went back to the people with the Nice treaty in the autumn of 2002 and secured a comfortable majority.
However, the declarations had no legal force. “It consisted of statements agreed at European level,” says Gavin Barrett, an expert in European law at UCD. “It didn’t amend the treaties, but it met the political need.”
Six years later, Irish voters were again asked to ratify a European treaty, this time the complex Lisbon treaty, which substantially amended the Rome and Maastricht treaties on how the EU works. Once again they refused, after a strong campaign against the treaty in which businessman Declan Ganley played a leading role.
Objections centred once again on neutrality, and also this time on the proposal to reduce the size of the European Commission – this endangering Ireland's automatic entitlement to nominate a European commissioner.
Irish neutrality
At a subsequent meeting, the European Council made a declaration which included guarantees that nothing in the treaty threatened Irish neutrality, and addressed other concerns, including tax and social matters. The European leaders also agreed that if Lisbon entered into force, they would retain one commissioner per member state.
On this occasion, it was agreed that the “legal guarantees” as they were called (though they were not legally binding) would be incorporated into a future treaty. Only when they did (they were included as a protocol to the Croatian accession treaty), did they acquire legal force.
But the guarantees solved the political problem, allowing the Irish government on both occasions to return to voters and say: this is a different offering. But that change depends on trusting the EU. And that is a hard sell for Mrs May.
