Katy Hayward: Was the backstop a good idea?

The greater the domestic chaos in the UK, the greater the need for legal measures

There are but three possible outcomes to the UK’s tortuous divorce from the EU. One is that the UK leaves without a deal. Another is that the withdrawal agreement is passed and future negotiations unfold during a transition period. Or else (least likely) article 50 is revoked and the UK remains a member.

None of these scenarios can avoid further flux, division and disruption. Brexit has transformed British politics to such a degree that there is no longer such a thing as the UK “status quo”.

The purported cause of the record-breaking failure of the British government to secure support for the withdrawal agreement is the Protocol on Ireland/Northern Ireland. Certainly, the DUP MPs who saved May’s skin in Wednesday’s vote are unambiguous in wanting to see this gone.

And yet the very purpose of the protocol is effectively to maintain the status quo for Northern Ireland as far as possible – an intention that would typically be expected to chime with DUP wishes. In fact, this is one of the few ambitions Arelene Foster and the late Martin McGuinness publicly agreed on in their last months of sharing power: to minimise Brexit disruption to Northern Ireland.


In their August 2016 letter to prime minister Theresa May, the first minister and deputy first minister set out their shared priorities: the Border must not become a catalyst for illegal activity; it must not create an incentive for those wishing to undermine the peace process; businesses must retain their competitiveness and face no additional costs; and the region’s vital agri-food sector must be protected.

Vocal support

Indeed, all but one of the concerns raised in that remarkable joint letter can be said to be met in the protocol. (The missing one is the one for which the UK government has control, ie the policies allowing access to unskilled as well as highly skilled labour). It is little wonder the majority of parties, business and civic leaders are vocal in their support for the protocol.

And the greater the domestic chaos in the UK, the more obvious the need for legally binding assurances to this uniquely vulnerable region.

But if the very existence of the protocol makes a no-deal more likely, has it proven too costly a risk for the Irish Government? To make such an accusation is firstly to criticise them for sticking to the presumption that the UK government is a rational actor, which will do all in its power to avoid direct harm to Northern Ireland.

Throughout the Brexit process, Theresa May has consistently sought to offer reassurance to those concerned about the potential risks from Brexit to Northern Ireland. Her letter triggering Article 50 was careful to state the UK’s government’s wish to make sure that “nothing is done to jeopardise the peace process” and “to avoid a return to a hard border”.

And what would have been the alternative approach? To have concentrated less on diplomacy and legal certainty and more on preparing for the worst? If the Irish Government was to prepare for the worst, it would be for no less than a return to a hard border. What would this mean in practice?

Policing borders

Brexiteers are right when they say that WTO rules are not about policing borders or enforcing border controls. This is because they are based on the assumption that customs controls will be imposed by states who want to protect their consumers, businesses and citizens. The idea that a country would simply refuse to fulfil its duties with regard to customs facilitation is bizarre.

Smuggling not only means losses to public revenue; it causes harm to legitimate traders, poses risks to consumers, and funds criminal activity. If the UK or Ireland decided to turn a blind eye to the traffic of goods across their borders, they would essentially be leaving a gate swinging wide open through which illicit goods will flow and from which criminals will profit.

This is the reality of what Ireland and the UK have to face with a no-deal. A fundamental rule of global border management is that a chaotic environment creates the capacity for border problems. No matter whether this chaos comes in the form of legal, political, economic or social flux – border problems will arise. If the UK leaves with no deal, the bare facts are that Ireland can do little to stem the ripple effect of profound uncertainties.

That said, there are means of preparing for a no deal border that are quite transparent already, and which do not (yet) contravene Minister for Foreign Affairs Simon Coveney’s wish to do everything in his power to avoid being “the government that reintroduced a physical border on the island of Ireland”.

Bilateral agreement

The indications are that the Irish Government’s preparations for a no-deal are more or less where one would expect them to be, even when it comes to managing a hard customs border. Such things include making headway on bilateral agreement around the Common Travel Area; expanding facilities in sea and air entry points; recruitment of customs officials; testing infrastructure capacity; advising businesses on preparation; and issuing at least outline contingency plans.

Looking ahead, if we end up with a no-deal outcome, it will be the decision not of the Irish Government but of British MPs. That so many of them are apparently willing to see the UK propelled into legal and economic insecurity in just 70 days’ time surely only justifies the Irish Government’s commitment to the certainties of the protocol.

Katy Hayward is a Reader in Sociology at Queen's University Belfast, and Fellow in the Senator George J Mitchell Institute for Global Peace, Security and Justice.