An interview by Poland's foreign minister kicked off this week's backstop wobbling. Jacek Czaputowicz said Ireland and the UK are playing "a game of chicken" and the backstop should be given a five-year limit to avoid a "frontal collision".
However, an article by Portugal’s former Europe minister, also published on Monday, was more interesting. Bruno Maçães delved beyond Poland’s frustration with getting a deal over the line and damned the whole structure of negotiations. “The Brexit talks were badly designed from the start,” he wrote for the Politico website.
Requiring a guarantee against a hard border before moving onto the future trading relationship, which will determine the nature of the border, “means that both sides had to reach an agreement on a matter they were effectively not allowed to discuss”.
Maçães blamed Ireland and the EU for pushing this but also UK prime minister Theresa May for not pushing back. She tried to introduce the future relationship into the first phase of talks instead of postponing the border to the next phase, as Maçães advises.
The backstop is an absurd negotiating concept even by Brexit’s Kafkaesque standards and its contradictions are now coming apart at the seams.
Future trading arrangement
On Tuesday, Taoiseach Leo Varadkar said in the event of no deal the UK and Ireland would have to agree a future trading arrangement to the same effect as the backstop – an unwitting admission this issue could and arguably should be dealt with in the next stage of negotiations.
An Irish Government statement the same day said: "Regardless of Brexit, the British government will always have responsibilities as co-guarantor of the Good Friday [Belfast] agreement to ensure that, even in a no deal, there will not be a return to a border."
The agreement says nothing about the nature of the border, let alone ruling out “a border”. Making claims to the contrary to justify the backstop has undermined both the backstop and the agreement. In any case, if the Irish Government believes the UK already has a binding treaty obligation to avoid “a border”, why is there a need for another?
Tied up in knots
Dublin is hardly alone in being caught out by the backstop. Westminster and the DUP are equally tied up in knots. That opens the possibility for a deal to be done if everyone will climb down just a little.
The key to this is that there are two backstops: customs union membership for the whole UK and customs union and single market membership for Northern Ireland.
The all-UK backstop was insisted upon by London to minimise DUP concerns about an internal UK sea border. It is despised by Conservative Brexiteers but is an incidental triumph for Dublin, as it also minimises the sea border between the Republic and Britain – of far more concern to Irish interests.
The DUP is now afraid the British government or the House of Commons will ditch the all-UK backstop, leaving the Northern Ireland one in place and deepening the potential sea border.
That gives the DUP and Dublin a powerful shared interest in getting the withdrawal agreement through largely unaltered. Last week, the unionists were reportedly even prepared to back a "Norway plus" soft Brexit, with permanent customs union and single market membership for the whole UK, until May decided to press on with her original plan and make DUP support for it critical.
The DUP’s public position is it will accept a time-limited backstop, presumed to be in the five-year range.
No guarantee
Dublin and the EU still insist this is unacceptable as a guarantee with an expiry date is at best no guarantee and at worst an invitation to bad faith.
Consider the timescale involved, however, and this looks more like a matter of pride than pragmatism. The backstop is not due to kick in until the end of the transition period, which can and almost certainly will be extended until the last day of 2022.
A backstop time limit would take that up to the end of 2027, nine full years from now.
Is the Irish Government seriously suggesting that finding a way around a hard border would take nine years to negotiate with a withdrawal agreement in place?
There is a chance Northern Ireland might not exist in nine years – a point of pressure on the DUP, should Dublin care to propose a backstop exit mechanism based more on agreed outcomes than timing.
It must be remembered that unionist concerns about the backstop relate only to cross-border trade, plus a related issue of European Court of Justice oversight. The rest of the Northern Ireland backstop addresses rights of individuals, the Common Travel Area, protection of the Belfast Agreement, agriculture, electricity and all other areas of cross-border co-operation. These could be included permanently in the withdrawal agreement without unionist objection, addressing many nationalist concerns.
If a bargain cannot to be struck from this, it will be a failure of politics all round.