Tuesday 11 December 2018

Breakdown in Brexit talks now more likely than ever

Ireland's Brexit strategy should be about damage limitation. Pushing for damage elimination could be the worst option, writes Dan O'Brien

BORDER PATROL: European Union negotiator Michel Barnier turned against suggestions of a UK-wide backstop. Photo: Francois Leno/Reuters

The chasm between the position of the Irish Government and the EU on how Brexit affects the Border on this island and the UK government's position is yawning wider than ever. That was highlighted by events last week. Thursday's six-page paper published by the cabinet office in London committed to keeping all of the UK in the EU's customs union for yet another additional year and possibly longer.

The Irish side was diplomatic in not dismissing the proposals - it has, after all, been calling on the British to put ideas down on paper for months. But the non-permanent nature of the commitment made it hard for the Irish Government to accept, given the position it has taken to date.

Last Friday, Michel Barnier, the man leading the Brexit negotiations on behalf of the EU, made a more fundamental objection. He said only Northern Ireland could be covered by a "backstop" arrangement.

Before going into some of the issues in detail, let me make the observation that the Irish Government's stance on the Brexit negotiations is one of the most important foreign policy decisions in the history of the State. That is because Britain leaving the economic and political space we have shared for almost half of the period since Independence will damage Ireland in many ways. There is almost universal agreement on that.

There has also been wide-ranging agreement over the past year that the Government's stance in the negotiations was the correct one (early last year there was criticism that the Government was not doing enough on Brexit, although this was ill-informed as much unpublicised work was being done).

The consensus that has emerged more recently is not one I have shared. As this column has argued since November, when the Northern Ireland backstop proposal was first put on the negotiating table, taking an excessively hard-line position with the British and demanding that there be absolutely no change to the Border on this island runs the risk of causing the Brexit talks to collapse. A no-deal exit would be the worst possible outcome for this island. The events of the past week have brought such a scenario closer.

There is no doubt that the change of Taoiseach a year ago brought a change in position, with Leo Varadkar taking a harder line with London than his predecessor. There was good reason to do that because the well-known internal conflict within Britain's Conservative Party was preventing real progress being made in the detail of the negotiations. With time running out and last June's snap UK general election weakening Theresa May, rather than strengthening her, it was tactically appropriate for the Irish/EU side to ramp up pressure in order to focus minds in London.

But the amount of pressure one side puts on another in a negotiation such as the one on Brexit needs to be carefully controlled. Too little pressure can see not enough happening; too much pressure can cause a breakdown. The pressure in any complicated and delicate negotiation, such as Brexit, needs to be carefully modulated. One factor in determining how to modulate the pressure in the Brexit negotiations is the dynamic within the British government.

Some commentators and analysts who support the hardline Irish/EU position say that Ireland only needs to think about its interests and should ignore the political difficulties of the British government. This view is simplistic. The reason governments have embassies in foreign countries and gather intelligence is to inform the positions they take. No good negotiator ignores the internal dynamic of their interlocutor. All good negotiators try to develop an understanding of how far the other side can go.

Last November, an entirely new level of pressure was applied to the British when a proposal was put on the table to deal with the border issue. A backstop arrangement for Northern Ireland raised the possibility of removing it from the British single market and customs union so that it would remain in the EU's versions of those free-market arrangements.

This was a game-changer. To seek to have a government impose borders within its own territory and have one part of that territory not subject to its laws and rules is unprecedented. There is no example anywhere in the world of a country agreeing to even the possibility of such an outcome for part of its sovereign territory.

The British ruled it out last December (after a few days of the sort of commotion which has characterised London's approach) and the wording of the December deal to move to the second phase of negotiations spoke only of a UK-wide backstop.

Despite this, the draft withdrawal agreement produced by the European Commission in March spoke of a Northern Ireland-specific backstop. At that point, May again ruled it out, saying that no British prime minister could accept it.

The British paper last week proposed revised wording for that withdrawal agreement, striking out specific references to Northern Ireland again and again. It insisted that the backstop could not apply to the North alone, but would cover all of the UK.

Last Friday, Barnier reacted more harshly than anyone in the Irish Government when he made a blanket rejection of a UK-wide backstop, a major new development, despite it being explicitly set down in the December agreement. He said the backstop could not include the entire UK and could only be for Northern Ireland. The region must form "part of our customs territory", he said.

Barnier went on to advocate for a border in the Irish Sea, pointing out: "Checks carried out on ferries are less disruptive than along a 500km-long land border. In addition, these checks can build on arrangements and facilities which already exist between the rest of the UK and Northern Ireland."

This was in stark contrast to the joint EU-UK paper in December. It stated: "In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market."

Making a demand in a negotiation which you know cannot be ceded by the other side is a risky tactic. It can win further concessions when the other side is weak, as the UK undoubtedly is in the Brexit negotiations. Hopefully, it will strengthen the anti-Brexit forces in London who want the least damaging Brexit.

But pushing the British too hard could lead to a breakdown. May could walk away from the talks - she has said many times that "no deal is better than a bad deal" or she could be ousted and replaced by the likes of Boris Johnson.

The chances of a no-deal Brexit have significantly risen over the past week. That would be the worst outcome for Ireland. There would be a hard border and relations with Britain, which will always be a strategic partner, would suffer immeasurably.

As May said in a letter to her MPs last week, sometimes choices are between the unacceptable and the unpalatable. A no-deal Brexit should be unacceptable for Ireland. A better outcome would be to limit the damage to some unpalatable aspects.

A good outcome is simply not achievable.

Sunday Independent

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