In Brussels last night, Theresa May told the 27 other EU leaders that she was willing to consider extending the post-Brexit transition period by a year. This would mean that the UK would follow EU rules, remaining inside the customs union and the single market and paying into the EU budget until the end of 2021.
The Prime Minister is prepared to consider such an extension as a means of unravelling what European Council President Donald Tusk described this week as the Gordian knot of the Irish backstop. At the end of her 15-minute statement to the leaders before they went off to dinner without her, Mrs May said the final stage of Brexit negotiations required “courage, trust and leadership” on both sides.
It’s never too late to show courage or leadership but time may be too short to reverse the loss of trust in the Prime Minister and her government that is at the root of the EU’s demand for an Irish backstop.
Northern Ireland and the border were scarcely mentioned during the 2016 referendum campaign but Brexit was always going to complicate the delicate balance of relationships on the island of Ireland and across the Irish Sea.
Over the past 20 years, the border has disappeared from the consciousness of those who live on either side of it, who cross its hundreds of roads every day to do business, go to school or receive medical treatment. Farms straddle the border and milk often makes a number of journeys in both directions across it to be collected, processed and distributed.
Immediately after the referendum, the hope in Ireland was that the British Government would seek the closest possible economic relationship with the EU, staying inside the single market and the customs union. This would have allowed the border to remain open, with no need for customs or regulatory checks and the physical infrastructure that accompanies them on every border in the world.
Mrs May ruled out such a solution when she promised that the UK would leave the single market, the customs union and the jurisdiction of the European Court of Human Rights.
By then, the EU had identified Ireland and the border as one of the priority issues, along with the divorce bill and citizens’ rights, that had to be resolved before the future economic relationship could be negotiated.
These three issues would be settled in a legally binding withdrawal agreement, which would be accompanied by a non-binding political declaration on the future relationship. And failure to agree a withdrawal agreement would see the UK crash out of the EU next March with no transition arrangement and with potentially catastrophic economic consequences.
From early in the negotiations, the UK appeared to be dragging its feet, raising the suspicion in Brussels that it hoped to use the border as a lever to win a more advantageous economic relationship with the EU as a whole.
"Irish officials fear that even unobtrusive infrastructure on the border would be a target for dissident Republicans"
The Prime Minister’s political room for manoeuvre diminished after last year’s general election, which left her dependent at Westminster on the votes of 10 DUP MPs. The hardline unionist party represents just over a third of voters in Northern Ireland, where a majority voted to remain in the EU in 2016.
It opposed the Belfast Agreement 20 years ago and its leader, Arlene Foster , said this month that its provisions should not be regarded as “sacrosanct”. This scepticism is shared by some English Brexiteers, who have also dismissed the issue of the border as a distraction.
Although Mrs May rejected the EU’s proposed text for the backstop last February, she told last night’s meeting in Brussels that she remains committed to a “legally operable” backstop. And she stands by the commitment she made in March that such a backstop would remain in place “unless and until” a permanent solution to keep the border open is agreed.
Under pressure from the DUP, the Prime Minister has characterised the EU’s backstop proposal as an attempt to carve Northern Ireland out of the UK. In fact, the constitutional status of Northern Ireland has been settled by the Belfast Agreement, which says it will remain in the UK until a majority of its citizens vote for a united Ireland in a referendum.
But Northern Ireland has a different constitutional status to other parts of the UK, including Scotland and Wales. An international treaty gives Dublin a consultative role in how Northern Ireland is governed, although it has no direct authority there. People born in Northern Ireland can choose to be British or Irish or both, and its devolved government must be formed by a coalition of representatives of both the unionist and nationalist communities.
The island of Ireland has a single electricity market and it has long been a single sanitary and phytosanitary unit, prompting the late Rev Ian Paisley to declare during an outbreak of mad cow disease in Britain that although his people were British, their cows were Irish.
The EU is willing to agree a UK-wide customs backstop and to make regulatory checks on goods between Great Britain and Northern Ireland almost invisible. But Ireland and Brussels are determined that, if the UK wants to leave the single market and the customs union, it cannot do so at the expense of the peace settlement in Ireland.
Although Brexiteers dismiss fears of a return to violence, Irish officials fear that even the most unobtrusive infrastructure on the border would become a target for dissident Republicans. That would require measures to protect such infrastructure, which could lead to an escalation in violence as a generation too young to remember the Troubles gets involved.
That is a risk Ireland is not willing to take to facilitate a hard Brexit and to accommodate the Prime Minister’s rebellious backbenchers.
- Denis Staunton is London Editor of The Irish Times.