openDemocracyUK

There's a simple solution to the Irish backstop

But they won't go for it, because it would mean letting the Scots be different

Anthony Barnett
Anthony Barnett
12 March 2019
The Ireland/Northern Ireland border
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David Dixon

There are at least two internal inconsistencies to Brexit that ensure it will implode. One is economic, it was sold as a national liberation from a Brussels bureaucracy holding back British enterprise. Whereas it cannot but be costly. The second is nationalist. For its leaders, Brexit is about expanding the influence and clout of Britain. The ‘B’ is essential to them.

This has ensured that they not Brussels are the ones responsible for the Backstop impasse. For there is a clear cut solution floated by Paul Gillespie in the Irish Times, while Colin Harvey of Queen’s University Belfast has written that it is “hidden in plain sight”.

The solution is rooted in the Good Friday or Belfast Agreement.

The Agreement brought to an end the violent civil conflict that was rending Northern Ireland apart. The so-called ‘troubles’ caused the deaths of over 3,600 people, injuries to many more, drove uncounted thousands from their homes, and also led to terrorist outrages and massive security measures across the UK .

The peace agreement signed on Good Friday 1998 was the result of long and far-sighted negotiations between the Westminster and Dublin governments. Both dropped their absolute claims on Northern Ireland and granted final decision making over its fate to the peaceful expression of Irish opinion north and south.

This is why it is baloney for Downing Street to protest that no prime minister could endorse a measure that separates one part of the Kingdom from the rest. For Northern Ireland already is juridically and constitutionally uniquely separated, in a profound way agreed by solemn international treaty.

The Agreement ensures compulsory power-sharing and entrenched human rights in Northern Ireland. It stipulated the disarmament of both the warring sides within the province and established an open border between it and the Republic of Ireland. The British government agreed that should a clear majority of the citizens of Northern Ireland indicate a peaceful desire to unite with the Republic to their south, a referendum on this must be held: the so-called ‘border poll’. The Republic altered its constitution to remove its claim to the Northern counties.

Before the Agreement could come into force there were concurrent referendums in the South and the North to confirm and legitimize the outcome. Not only does Northern Ireland have a different constitutional status than Great Britain, therefore, this is also rooted in popular consent across the whole island of Ireland.

Today the Agreement has become a problem for the UK for a simple reason. If after Brexit the British government wants to decide its own regulations this may necessitate physical border checks of some kind along the winding land border between the UK and the EU and breach the Agreement.

Both the UK and the EU say that if they conclude a future relationship that does not necessitate checks then there is no problem. But what if they don’t? As the British side cannot make up its mind what it wants, the EU proposed as an insurance that Northern Ireland remain in its Customs Union and Single Market while still governed by Westminster. In effect this would place the regulatory checks ‘North/South’ down the Irish Sea.

The UK government rejected this and proposed instead that the whole of the UK remain within the Customs Union until the border issue is resolved, so as to prevent any internal border within the UK.

But the House of Commons, led by the hardline Brexiteers, rejects a Backstop that extends to the whole of the UK. Even though it is a UK proposal, it means the UK might never leave the Customs Union, as the EU will be able to reject whatever future proposals the Brits come up with. The strength of this argument and the number of its supporters mean that Theresa May’s government has so far failed to pass the Withdrawal Agreement increasing the threat of a disastrous ‘no deal’.

Tory MPs demand that the UK must have a unilateral power to end the Backstop. Equally reasonably, the EU says in that case it will not be a backstop.

The clear cut solution that would allow the Westminster side to terminate the Backstop unilaterally is this. When the transition is concluded Westminster should propose its solution for the Northern Irish border. If the EU does not agree then the UK may give 18 months’ notice that the backstop will come to an end. Within one year, Irish voters on both sides of the border will decide by referendum on whether they support the Westminster solution or would prefer the North to stay in the Customs Union and Single Market.

This would not be the same as the border poll set out in the Good Friday agreement. The historic issue of Irish unity should not be a matter that is put to decision simply because London has a problem.

But a vote by the Irish on whether or not they accept the proposed solution draws upon the democratic process embedded in the Good Friday Agreement. For it leaves it to the people on both sides of the border within the island of Ireland to decide if Westminster’s proposals work for them.

This would also draw on the spirit of direct democracy established by the 2016 referendum itself.

Why then doesn’t the Cabinet just go for this solution, that is in their plain sight? It is not just because the DUP won’t like it and they need their ten votes. Or that polls already show a clear majority in the North would accept a regulatory border between them and the rest of the UK to ensure peace.

The real problem for Westminster is that it is impossible to see how if this power was granted to the people of Northern Ireland it could be refused for those in Scotland. And Scotland voted by 25% majority for Remain when Northern Ireland did so with only a 14% majority.

This is why that internal contradiction of British nationalism is so deadly when combined with the economic farrago of leaving the world’s largest free-trade area in the name of more free trade. The widely commented tension between plebiscitary and parliamentary democracy does not help. But when there are four nations, a referendum need not express ‘the will’ or deliver ‘an instruction’ of the people. Britain is a multi-national state with different peoples. Trying to keep it together while leaving the EU, when some of them wish to stay, is worse than herding cats.

Brexit Britain is like a super-nova. The great star of the old British state emitted a huge pulse of democratic energy in the referendum and is now collapsing in upon itself. Issuing toxic radiation in the process as Westminster becomes a black hole of negativity.

The only way to turn the energy into a creative not destructive force is through a People’s Vote. But just as the 2016 referendum was far more a vote about ourselves than the EU, a new referendum can’t be seen as another vote about Europe seeking merely to reverse the earlier decision. It has to be a call to replace the whole damn system before we are all sucked into its black hole.

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