By Brendan O’Leary
British Prime Minister Theresa May had hoped that the third time would do the trick. After failing twice to get her withdrawal agreement with the EU through Parliament, she was gearing up for a fresh attempt last week, until she was blocked by the Speaker of the House of Commons and by the European Council. The Speaker declared that the British government could not put substantively the same motion before Parliament twice in the same legislative session. The Council had refused to modify the withdrawal agreement, which made the Speaker’s decision unavoidable, and it later imposedunexpectedly firm terms on May’s request for an extension. She had requested a short extension to conclude by June 30, knowing that her government could not now meet its schedued exit date of March 29.
May’s premiership is now hanging by a thread. Her three-pronged strategy of blackmail, bribery, and betrayal has collapsed. The blackmail had involved running down the clock to force MPs to choose between her deal and no deal (for which the United Kingdom is not prepared). The European Council, however, has changed that game. Under the extension agreed by the Council, the Commons must ratify the existing withdrawal agreement (provided the Speaker allows the government to put it to the House again) no later than April 12. If it does not, then the United Kingdom must choose between leaving without a withdrawal agreement, revoking the request to withdraw from the EU, and accepting a much longer extension of the negotiations. The latter possibility comes with a sting: the United Kingdom would have to participate in the elections to the European Parliament scheduled for May. Such elections would inevitably approximate a fresh referendum on remaining in or leaving the EU.
On top of blackmail, May has tried bribery. To win support for the withdrawal agreement from the small Northern Irish Democratic Unionist Party, upon which her government’s parliamentary majority depends, discussions began that implied future spending increases for Northern Ireland. Conservative ministers had earlier announced plans for infrastructure spending that would particularly benefit English districts that voted to leave but that are represented mainly by opposition Labour MPs. But the DUP has said it will not be bought, at least not on this occasion, and there do not seem to be enough pro-Leave Labour MPs to get May’s deal through.
The Prime Minister’s politicking since losing the first vote on her deal in January has also included openly advertised betrayal. She has sought to rescind, reverse, or ambiguously gloss the solemn promises the United Kingdom made to the EU-27, and especially to Ireland, in the draft withdrawal agreement. The protocol in the text that drove May to this expedient is widely known as “the Irish backstop” and has become anathema to the DUP and the hardline “Brexiteers.”
May's three-pronged strategy of blackmail, bribery, and betrayal has collapsed.
In baseball, the backstop prevents balls from hitting spectators seated behind the catcher and keeps most balls inside the field of play. The metaphor is not quite right for the case at hand. The backstop in the protocol better resembles an insurance policy. It minimizes collateral damage to the Good Friday Agreement of 1998, entrenched in a 1999 treaty between the Dublin and London governments. It pledges that citizens in Northern Ireland will continue to have the same rights as citizens of the Republic of Ireland, and vice versa—including those that derive from the Good Friday Agreement, EU law, and the European Convention on Human Rights. The Good Friday Agreement mandated cooperation between Northern Ireland and the Republic–and attached EU regional and peace programs. The backstop protects this goal and these projects, including 12 governmental functions overseen by the North-South Ministerial Council, and, according to civil servants, over 140 related distinct economic activities. These notably encompass the agricultural and food business that has developed integrated supply chains across the current border and the island’s single electricity market.
Most famously, the backstop promises that no fresh physical border infrastructure will be erected on the island, between Northern Ireland and the Republic—either to collect customs or as a regulatory barrier checking goods and people moving back and forth over what will become the UK-EU border. This border was unilaterally imposed by the British parliament in 1920 and was the site of political contestation and armed confrontation during much of the last century. This “no hard border” pledge applies unless and until the United Kingdom and the EU strike a new trade agreement that would render it unnecessary, or agree on technological innovations that would allow trade and traffic to continue without border infrastructure.
Here’s the rub for the Brexiteers. All of the backstop comes into effect after a short transition if the United Kingdom and EU have not made a new trade agreement (or if technological miracles have not occurred). Such an outcome seems highly likely, given how long most trade agreements take to negotiate, and how difficult it has been to reach a draft withdrawal settlement. Making things even harder, any future trade deal will likely be a “mixed agreement,” meaning that it will contain non-trade components, which means each EU member state will have a veto on its ratification. When the backstop comes into effect, the entire United Kingdom will be forced to remain within the European customs union and would be unable to strike significant new trade agreements with third countries until it concluded its new treaty with the EU. The Brexiteers fear is that the United Kingdom will get trapped in the backstop.
The trap, however, is of May’s own making. Back in 2017, the EU and May’s negotiators drafted a protocol to allow Northern Ireland to remain within the EU’s customs and single market regulatory provisions after the transition, while Great Britain would be free to leave the customs union and to deviate from the single market. In other words, an economic border would run not across the island of Ireland but down the Irish Sea, administered at ports in Northern Ireland and Great Britain.
It was a decent compromise. It recognized that Northern Ireland was different: the sole significant territory (aside from Gibraltar) in which there would be a land border between the United Kingdom and the EU. It protected the Good Friday Agreement, and respected the fact that Northern Ireland had voted to remain in the EU in 2016 (by a margin of 56 to 44 percent). And it avoided disrupting the remarkably stable Irish peace process.
Within hours of the protocol being released, however, the DUP, which has propped up May’s minority government since a snap election in June 2017 left the Conservatives without a majority, signaled that it was unacceptable. These uber-British Unionists, whom May had failed to consult, feared that a border in the Irish Sea would weaken the United Kingdom’s integrity. The DUP insisted that Northern Ireland should be treated exactly the same as Great Britain.
May caved. And her solution—essentially putting the entire United Kingdom into the backstop—created her current predicament. That’s when and why Conservative MPs, afraid of the United Kingdom being trapped in the backstop as a rule-taker rather than as a joint-rule maker, became obsessed with how to eliminate or breach the backstop. One way to avoid the backstop would be to leave the EU without a deal, but that would be highly costly, and a majority of Conservatives oppose this outcome. Another would be to persuade the hardline Brexiteers and the DUP that the United Kingdom can unilaterally leave the backstop, despite its solemn pledges to the EU. Reasonable people might call this latter option a betrayal of the United Kingdom’s partners—or, to invoke an old expression, an example of perfidious Albion.
In pursuit of just such a mission, May dispatched her Attorney General, Geoffrey Cox, to Brussels two weeks ago to negotiate a codicil with the EU that would give London the freedom to renege on its commitments. Cox failed. He conceded that the text with which he returned did not preclude the possibility that the United Kingdom would get trapped in the backstop. His honesty helped lead to May’s second crushing defeat.
Since then the air has been thick with suggestions seeking to help May and Cox, jointly suggesting that the United Kingdom might be able to use the Vienna Convention of 1970 to break the treaty it is proposing to sign with the EU. But as their critics—and professional international lawyers—unanimously observe, the Vienna Convention allows a treaty to be unilaterally terminated only if there is an unforeseen change in circumstances. But so far, all the discussion of the backstop has focused on entirely foreseeable circumstances, which could not justify breaking the new treaty.
THE OTHER BACKSTOP
Whether or not May, or her successor, gets her deal over the line, a backstop to the backstop is now emerging—this one in the United States, although Brexiteers, and their friends, do not seem to have noticed it. Irish Americans played key roles in making and implementing the Good Friday Agreement. U.S. President Bill Clinton and Senator George Mitchell of Maine are the best known, but many others helped, including the congressmen Richard Neal, Democrat of Massachusetts and co-chair of the Friends of Ireland Caucus, and Peter King, Republican of New York. Neal also chairs the Ways and Means Committee, which has jurisdiction over tariffs.
The Friends of Ireland caucus includes several senators—including Democrats Chris Murphy of Connecticut, Chuck Schumer of New York, Sherrod Brown of Ohio, Tim Kaine of Virginia, and Bob Casey of Pennsylvania—and dozens of Members of the House. Within the caucus, a new generation of organized Irish Americans is moving to protect the achievements of its predecessors. Prominently led by Senator Murphy and Congressman Brendan Boyle, Democrat of Pennsylvania, who also sits on the Ways and Means Committee, this group is focused on protecting the Good Friday Agreement and preventing a hard border in Ireland at all costs. They will have a major say in the making of any new trade agreement between the United States and the United Kingdom. If London betrays the Irish backstop or leaves the EU without a deal, it will likely get a cold reception from Congress. Organized Irish America will insist on the maintenance—or the restoration—of the Irish backstop if Washington is to agree a trade deal with London.
Murphy, who sits on the Foreign Relations Committee, has declared that there is “no chance” of a U.S.-UK trade deal if there is a return to a hard border. He has added, “We are all friends of Britain—it is an unbreakable bond—but we can’t compromise the sanctity of the Good Friday Agreement and folks [in the Commons] need to know that.” Brexiteers would be wise to recall what happened in the 1990s, the last time the United States had to choose between its special relationship with the United Kingdom and its ties to Ireland. Organized Irish America won decisively. If the Brexiteers escape one backstop, they may well find themselves trapped in another.