by Frank Schnittger
Fri Jan 25th, 2019 at 01:27:28 PM EST
Faced with the possibility of Brexit being delayed, or even reversed, members of the DUP and ERG are beginning to moderate their positions and are suggesting that May's deal could be passed if only the hated Irish Backstop clause could be removed or time limited in some way.
For their part, the Irish government is coming under increasing pressure to moderate its absolute insistence that there can be no border infrastructure of any kind. Critics are pointing out that a hard customs border will be legally required from the 29th. of March if a no deal Brexit occurs.
Officially the Irish government is still insisting that this is a problem for the UK side to overcome, and that it is awaiting firm proposals from the UK side so it can respond accordingly. The problem is that no one trusts Theresa May's ability to deliver on her promises any more, so what is the point of making concessions now when there is no guarantee these will secure a deal and that the UK government won't come back again looking for more?
But the outlines of a potential deal have been visible for some time if only the political skill was there to realise it...
Suppose the House of Commons were actually to pass a bill ratifying the Withdrawal Agreement ("May's Deal") subject to an amending clause time limiting the Backstop to a maximum duration of (say) 5 years similar to the amendment proposed by Andrew Murrison MP (Cons).
May will have gotten her infamous deal across the line. Brexiteers will have achieved Brexit, even if it doesn't become fully operational until the EU and UK have agreed a new future relationship, or failing that for 5 years. Remainers will have secured a relatively soft Brexit with industry spared the prospect of the chaos of a no deal Brexit. The EU will be assured that one simple further concession will secure an orderly Brexit and they are no longer subject to the whims of the DUP and extreme wing of the Tory party.
But what about Ireland? The Irish (minority) government will be pilloried by all opposition parties for conceding the principle of a hard border in at most five years time, unless the EU and UK can agree a deal which has so far eluded them. Realistically, that can only happen if N. Ireland remains within the Customs Union and Single Market (CUSM) and we know the DUP will oppose this as it would created a customs border "down the Irish sea" unless Great Britain, too, remained within the CUSM.
In vain the Irish government will plead mitigation because the alternative "no deal" scenario would have required a customs border from the 29th. March. In politics, there is a world of difference between agreeing to something, and having it forced upon you by the decisions of others despite your strong opposition.
But is there also another way out of this dilemma? Suppose the Irish and UK governments were to agree a critical amendment to the Belfast Good Friday Agreement (GFA). At the moment the GFA only explicitly refers to a referendum in N. Ireland in the event of a proposed United Ireland. The EU is hardly mentioned, because all assumed both Ireland and the UK would remain members indefinitely. Article 50 of the Lisbon Treaty didn't exist then.
The GFA has, effectively, become the constitution of Northern Ireland in the absence of a formal, written constitution. Supposed the proposed amendment provided that the status quo in N. Ireland (membership of the EU) could only be changed with the explicit approval of a majority in N. Ireland in a referendum. The Irish government could then point to the the 56-44% Remain vote in N. Ireland as providing a reasonable guarantee that no hard border would ever come about.
The DUP would then be placed in the awkward position of opposing a referendum in N. Ireland on EU membership - not that that ever stopped them. This scenario could therefore only come into play once the House of Commons had actually voted for the (amended) Withdrawal Agreement and the DUP's critical votes could no longer block it.
The DUP could always vote no confidence in May's government and prevent any change in the GFA, but would they still hold the balance of power if the Irish Government insisted that its support for the (amended) Withdrawal Agreement was contingent on the amended GFA?
Would a majority in the House of Commons really countenance a no deal Brexit if the price was a simple referendum in N. Ireland giving its people a choice of remaining within the EU or not when that principle has already been conceded in relation to a United Ireland?
It can be pointed out that it is quite possible for N. Ireland to remain in both the UK and EU - arguably the best of both worlds, from a Unionist perspective - as Greenland remains part of the Kingdom of Denmark, but no longer part of the EU.
The EU has already conceded the principle of extending full membership to N. Ireland in the event of Irish re-unification, so agreeing to it somewhat in advance of any such development would not be a major change of principle. It would also remove the pressure on the EU to agree to effectively full membership of the CUSM for all of the UK (in order to keep the Irish border open) without the concomitant costs which Norway pays, and restrictions on the UK's ability to control immigration and negotiate FTAs.
Of course a referendum in N. Ireland wouldn't be required if, in five years time, the UK government of the day were no longer dependent on DUP support and were happy for N. Ireland to remain within the EU.
Probably the strongest argument against it from a UK perspective is that Scotland would demand a similar referendum which could, potentially, create a customs border on the Scottish English border. But that would be an argument for another day, and would many in England actually care at this stage?
But all of this is contingent on the House of Commons actually passing the (amended) Withdrawal Agreement and amendments to the GFA. Nobody will trust the UK until it clarifies exactly what it would actually take to achieve an orderly withdrawal. Hence the constant refrain from EU leaders for the UK to actually state what it wants and what it is prepared to concede. No further confused speeches on red lines from Theresa May will suffice.
Theresa May may not yet have lost the Confidence of the House of Commons, but she has certainly lost the confidence of the EU.
Hence, the refusal to date of the EU to budge from the Withdrawal agreement as previously agreed. Hence the public refusal, to date, of the Irish Government to re-negotiate the GFA. The DUP has to be taken out of the equation first. Exactly what is it a majority of the House of Commons will support?
The world wants to know.