This speech is a very big deal. The backstop arrangement is a crucial part of Brexit negotiations. It also may have major consequences for peace in Northern Ireland. May’s hostility to the backstop probably doesn’t have much to do with constitutional principle. It is more likely driven by politics within her own political party, and the demands of the Democratic Unionist Party, which is propping up May’s minority government.
Peace and borders are closely connected in Northern Ireland
To understand what is going on, it’s first necessary to understand the role that the European Union played in the Irish peace process. The shared E.U. “customs union” and a “single market” avoided the need for border controls between Northern Ireland and the Republic of Ireland. This not only made it possible for the two economies to become highly integrated. It also had symbolic importance, in allowing people and goods to move back and forth between the two jurisdictions, without any necessary implication that Northern Ireland would become politically united with the Republic.
Britain’s decision to leave the European Union has politicized border controls, raising the question of how to reconcile the fact that the Republic of Ireland is still in the European Union, and operates under E.U. customs and market rules, and Northern Ireland soon will not. Unionists — who want to stay part of Britain — do not want any arrangement in which Northern Ireland would have separate rules from Britain. They fear that this might lead Northern Ireland to drift politically closer to the Republic. Republicans and nationalists — and the government of the Republic of Ireland — do not want any arrangement in which Northern Ireland would have a “hard border” with the Republic. The problem is that it is difficult to avoid a hard border, without some kind of special rules and status for Northern Ireland.
This is why the Northern Ireland border question was supposed to be settled before Brexit negotiations proper began. It turned out to be impossible to reach a deal on what to do with Northern Ireland’s status, but E.U. negotiators and the Republic of Ireland accepted a compromise under which Britain agreed on a “backstop” arrangement. The European Union and Ireland interpreted this deal as saying that if no better mutually acceptable arrangement could be found, Northern Ireland would stay in the European Union’s Single Market and Customs Union, allowing the real negotiations to begin.
Britain is backpedaling on the backstop
Britain always wanted to interpret the backstop commitment more flexibly than the European Union. It tried to persuade the European Union to accept a deal under which Britain would stay inside E.U. customs and market arrangements for some period while it sorted out its own long-term status, but would not be bound by the broader commitments of E.U. membership. The European Union made it clear that this proposal was unacceptable, because it would plausibly allow Britain an enormous degree of freedom both in terms of when it decided to leave, and how it interpreted its obligations toward Europe.
Furthermore, pro-Brexit members of the Conservative Party, who had once promised that Britain would remain part of the customs union, now want a much “harder” Brexit than they once said they did. Theresa May, fearing that pro-Brexiters would split her party and perhaps force her resignation as leader, agreed last week to terms imposed by the pro-Brexit faction. One of her concessions was a change to the British customs bill that declared that it would be unlawful for Northern Ireland to be “part of a separate customs territory to Great Britain.” This meant that Britain has legally pre-committed itself to refusing to implement the backstop that the European Union thought had already been agreed.
The politics of the backstop are not being driven by constitutional worries, but by Britain’s inability to get the European Union to agree to a fudged agreement on customs and single market membership, the intransigence of May’s own party members, and the weakness of May’s leadership. It is furthermore likely that the Democratic Unionist Party, which is propping up May’s government, has also demanded that there be no arrangement that would distinguish Northern Ireland from the rest of Britain.
This may destabilize Brexit negotiations — and Northern Ireland
May’s speech will have stark consequences for Britain’s Brexit negotiations. She is presenting the European Union with a fait accompli, binding her government to a negotiating position that the European Union has made it clear it will not accept. It is theoretically possible that this will work to her advantage. Sometimes, as political scientists such as Robert Putnam have argued, weakness at home may turn into strength abroad. If you are too weak, you won’t be able to implement concessions that other governments would like you to make. However, the danger of weakness is that you may be caught in a position that is simply unacceptable to other countries’ negotiators, so that no deal is possible. This is the big risk that May is taking. If her new demands are unacceptable to the European Union, Britain will find itself in a “no deal” Brexit that could have very damaging consequences for the British economy.
Furthermore, the speech’s intransigence is likely to have consequences within Northern Ireland. Northern Ireland’s peace deal was already in serious danger, as a result of distrust between the major parties. May’s speech is likely to be interpreted by nationalists as a strong signal that she is in the pocket of the Democratic Unionist Party. Already, nationalists are having difficulty restraining radicals from returning to “the armed struggle.” May’s speech is likely to add greatly to their difficulties.