Event Report: Brexit, the Backstop and the Island of Ireland
Alessandro De Nicola (DCU Brexit Institute)
On 13 December 2018, the DCU Brexit Institute, in partnership with the Centre for Constitutional Change (CCC) organized an event on “Brexit, the Backstop and the Island of Ireland”, held at the Helix, in Dublin City University. This event featured an opening Keynote Speech by John Bruton (Former Taoiseach of Ireland), introduced by Brian MacCraith (President of DCU). This was followed by an expert panel discussion and a closing Keynote Speech by Giuliano Amato (Former Italian Prime Minister, Former Vice president of the European Convention and Justice at the Constitutional Court of Italy) chaired by Federico Fabbrini (Director of DCU Brexit Institute). The programme of the event is available here. The following is a summary of the event.
Opening Keynote speech
John Bruton, former Taoiseach of Ireland, discussed the meaning of populism. In his opinion populism doesn’t have a remedy for the problems of modern society. He pointed out that nowadays technology gives the possibility to express opinions and confirm these opinions, but they are confirmed without rational discourse. He admitted that sometimes political correctness can stifle debate, in that people might have a valid point to make but might just be using the wrong language.
What effect does it have on the EU that Britain is leaving? People don’t want to concede to politicians any more time. They just want security and predictability. In recent years EU has faced and has overcome existential crises and throughout those has remained united. Also throughout the process of Brexit the EU has been united. Among its numerous problems, the EU has now to face also another question: the maintenance of the rule of law in Poland and in particular in Hungary.
About Brexit he believes there are 5 options of how it can unfold: No Brexit, Brexit with an existing deal, a completely new deal, a managed no deal, no deal at all. For sure the first scenario would require a new referendum. Bruton says that, essentially, Brexit poses a test of the capacity of parliamentary democracy. Is parliamentary democracy capable of making a rational decision? It is currently not offering an easy way to resolve a complex issue. The United Kingdom is going to have to find a solution to this problem. This situation will lead to a re-alignment in political parties of the UK.
Concerning the Withdrawal Agreement, we do not want any there to be any borders, either between Northern Ireland and Great Britain or between Northern Ireland and the Republic of Ireland. If the Conservatives read the Withdrawal Agreement carefully, they will see reassurances with a strong political language on the determination to replace the backstop.
The panel discussion included Sorcha Eastwood (Alliance Party), Bobby McDonagh (DFA), Chloé Papazian (DCU)and Owen Reidy (ICTU), and was chaired by Fintan O’Toole (Irish Times).
Bobby McDonagh started by discussing the relationship between the the Irish and British over several decades, and then turned to the effects of Brexit on this relationship. McDonagh underlined that the years-long process of moving ever closer sociologically, economically and politically between Ireland and the UK may now for the first time go in the reverse direction. It is not easy for Ireland being part of the EU without the UK, in particular for geographical reasons. In his opinion the UK wanted to leave mainly for sovereignty reasons: it didn’t want to have its sovereignty limited anymore. Ireland wants to stay in for the opposite reason: to have a role in Europe. McDonagh concluded by saying that if the Brexit process went ahead, Ireland would need to manage separate relationships with the EU and with the UK. He pointed out that one of the reason for Ireland to have an important relationship with UK is that Northern Ireland is a shared responsibility. Whatever way the relationship between UK and EU is eventually settled, Ireland will remain an important partner for the UK.
Sorcha Eastwood gave a Northern Ireland perspective. In her speech she highlighted that on Brexit, debate has been characterized by a high level of ignorance. In her view it is very important to understand the importance of an open border because a hard border could change peoples’ lives irrevocably. For this reason, people in Northern Ireland consider the backstop, as agreed by UK Government and EU institutions in the Withdrawal Agreement, to be of fundamental importance. An agreement without a backstop could be a risk for people both from North and South in Ireland who share things together across the border. The European Union has been able to guarantee decades of peace.
Owen Reidy argued that there are no good perspectives for working people in the Brexit context. Reidy said that in any negotiation, each side needs to know what it wants and what is achievable, and it must have an understanding of the needs of the opposite side, the flexibility to make a deal, and a strategy to maintain the support of the people on one’s own side. The UK has been sorely lacking all these respects in the Brexit talks. A lot of people in Ireland and Northern Ireland would support the Withdrawal Agreement that is, for him, the best in this situation.
Chloé Papazian made a presentation about the economical and juridical consequences of the hard border between Northern Ireland and Republic of Ireland. She argued for the importance of the backstop solution in order to avoid a hard Brexit and consequently the return of WTO rules. With a no deal, the UK would suddenly leave the EU customs union and the single market. In this regime WTO rules would govern the relationships between the UK and the EU. The two of them will became two independent WTO territories. She underlined that under the WTO’s most favored nation principles, UK could not impose different duties vis-à-vis the EU than on any other Country in the world. WTO regulations would bring a lot of practical problems. To avoid this, the most realistic solution found in the Withdrawal Agreement is the all-UK backstop which would, as a last resort, prevent the imposition of a customs border either in the Irish Sea or on the island of Ireland.
Closing Keynote Speech
Giuliano Amato began his speech saying that David Cameron is responsible for opening the Brexit Pandora’s Box. When Theresa May became PM she started fighting for Brexit even if she was on remain side during referendum electoral campaign. Amato contested the UK Supreme Court decision that the Government could trigger Art. 50 TEU only after receiving parliamentary approval. In the Government’s opinion, Parliamentary authorization was not needed. Amato recalled that the decision for triggering Art. 50 TEU has to be taken accordingly with domestic constitutional requirements of each state. In Amato’s opinion, it should have been possible for Parliament to give its opinion after Art. 50 had been triggered. Afterwards Amato moved on to the recent ECJ decision on the possibility to unilaterally revoke Art. 50. The ECJ said that this decision to remain into European Union can be taken by the member state in question without the consent of the other member states. The others’ consent is only needed to extend the 2 years period.
Another point touched on by Amato’s speech was the question of the backstop. In his opinion it is disingenuous to call the backstop “temporary”. From the EU’s point of view the backstop is a temporary solution, but the UK and the EU really need to find a definitive solution to this problem. In Amato opinion hard border is a very bad solution. Amato affirms that Irish border question could be faced with only two ways, either with a physical border between Northern Ireland and the Republic or a Custom Union. There is not a third choice (like the backstop). In conclusion, Amato asserted that UK has never been a full European Union Country because of the huge number of opts out used by UK.