Successful negotiating depends on both sides recognising the relative weakness and strength in their bargaining power. A mutual understanding of the need for compromise makes trade-offs between more or less desired priorities easier.
The Brexit negotiation between the European Union and the United Kingdom has so far failed these tests. The British government underestimates how leaving weakens its bargaining power with the EU. It has not decided how to trade off competing priorities between being close to or distant from the EU’s customs union and single market. Nor can it deliver on the internal political compromises needed to complete this first stage of negotiation. The second stage on future relations will be longer, more detailed and a greater challenge.
Ireland has become the sticking point in the first stage endgame. The British government wants to reopen the agreement it reached in December 2017 allowing Northern Ireland to remain in the customs union and single market to protect the peace process and prevent Border controls on this island. This is unless and until a wider agreement is reached to make such an insurance policy or “backstop” unnecessary. The UK now seeks a time limit or unilateral right to withdraw from the backstop – despite compromises by the EU making the policy UK-wide to avoid a border in the Irish Sea and specifying how it can be jointly amended and reviewed.
Ireland is a key issue because the UK’s sovereignty crisis has a dual nature. It is external in relation to the EU and internal in relation to the future of its own union. The linkage is explicit in the negotiations, in its political discourse and in the Conservative government’s reliance on the Democratic Unionist Party for its parliamentary majority.
The harder the Brexit the more fearful unionists are that the UK could break up. Yet paradoxically the most vociferous unionists are to be found on the hardest end of the spectrum. The Irish issue raises not only the future relationship of the UK to the EU across their sole land border on this island but whether Irish unification to ensure EU membership would precipitate Scottish and Welsh independence.
This internal convulsion of the UK’s political, governing and constitutional systems must play itself out more before they can reach a final agreement on future relations with the EU. They face immediate choices between a general election, a second referendum, a close or soft Brexit or no deal. There are strict realist limits on what can or should be offered by the EU to shift or hasten that game, since such moves are likely to be churned into the convulsion rather than become part of a successful negotiating outcome.
The EU’s move last autumn to make the Irish backstop UK wide gave rise to the phrase “backstop to the backstop”. It describes a fallback position recognising Northern Ireland’s distinctiveness within the UK as a conflicted region where sovereignty is shared between two communities and is subject to an international agreement providing that Irish unity can come about through concurrent referendums there and in the Republic.
Constrains UK options
British and Irish critics of the backstop say it constrains UK options so much as to make a no-deal more likely – the very outcome it was designed to avoid. They are short and weak on suggestions of alternatives that would not be used opportunistically or perfidiously by the UK’s internal combatants.
Might a Border poll become an ultimate “backstop to the backstop to the backstop”? Could it be brought into the EU-UK negotiation legally and politically?
In one scenario the Northern Ireland backstop would come into force at the end of the transition period when Brexit happens on March 29th next. After one year the UK government would have the unilateral right to declare the backstop would come to an end. Before that happened there would be referendums on whether voters in the Republic and Northern Ireland wish to unite within the EU rather than have a border between them. A variant scenario would limit the backstop to 10 years on the same condition.
Irish critics say this would dangerously provoke Northern unionists already spooked by Brexit uncertainty, inhibit nationalists from restoring powersharing and discourage reconciliation and deliberation.
For now it is too flip, impractical and imprudent an Irish solution to a British problem. Yet it is likely to surface more strongly the more Britain’s dual sovereignty crisis accelerates and remains unresolved.