Ronan McCrea argues that the crisis of trust between Ireland and the UK could peak under a Johnson premiership, as the backstop will be again the main negotiation point this autumn. Irish authorities would be torn between two damaging solutions (scrapping the backstop or no deal) and the room for compromise is getting extremely limited.
To Irish observers of the Brexit process, the Tory leadership contest may make it appear that we have been victims of a horrifying time loop.
Back in 2016, Theresa May set out an approach that was characterised by serious over-estimation of the UK’s negotiating power and by a wishful “have cake and eat it” approach.
It took months and months as well as the salutary experience of actual negotiation with the much bigger EU to get May to change tack having realised that, should she persist in this approach, Britain would face the severe shock of a no-deal exit.
Three years after the June 2016 referendum, the Irish authorities must now be watching in horror as Boris Johnson, the overwhelming favourite to be the next Conservative leader, trots out the same deluded talking points that characterised the British approach in 2016 and which it took months of painful talks to dispel.
May, though a poor leader, was at least responsible and unwilling to subject the UK to the economic and political chaos that a no-deal exit would bring. As she would not risk a no-deal outcome, it made sense for Ireland to hold out for its ideal outcome (no change at all to the Border).
However, in the near future the UK is likely to have a leader, in Johnson, who has a reputation for irresponsibility and who owes his job to the 170,000 Conservative Party members who hold extreme views on the Brexit issue.
To back off no deal would involve him sacrificing his own interests for the greater national interest, something that is alien to a person whose time in public life has been characterised by a desire to say whatever is necessary to advance his career.
Under a Johnson premiership, the position of the UK government may well be that a hard Border between Northern Ireland and the Irish State – and the chaos of a no-deal Brexit – are worth it if it means getting out of the EU.
If the UK is determined to jump off the no-deal Brexit cliff in this fashion the only way to keep an open Border with Northern Ireland will be for Ireland to accept semi-detached membership of the EU single market.
For Dublin, this would be too high a price to keep an open Border. It would amount to excluding Ireland from the core of EU membership, not to mention representing a powerful statement that, after 100 years of independence, Ireland sees itself as still falling within the UK’s sphere of influence.
Backing down and accepting the backstop or postponing leaving would be suicidal for Johnson. Similarly, compromising on the backstop would be politically very risky for the Irish Government, not to mention diplomatically embarrassing given that Ireland has spent three years telling our EU partners that any hardening of the Border would be catastrophic.
Disaster is not inevitable. Moderate Conservative MPs could bring down a Johnson government and the Conservatives could lose the resulting election.
On the other hand, with Labour vacillating on Brexit, if Johnson’s Conservatives manage to unify the 40-45% of pro-Brexit voters, that may be enough for a majority under the UK’s electoral system.
Either way, time is running short. In the absence of the unanimous agreement of EU member states, the default legal position is a no-deal Brexit on October 31. That is still four months away, but EU leaders are still negotiating on how to fill key EU posts following the European elections, and the new Tory leader will not be elected until late July.
Given the traditional August break, there will be only a few weeks in the autumn for politicians to work out how to avoid a no-deal outcome. With positions on both sides entrenched, it will be difficult to pull off any kind of compromise in such a short time.
The Irish strategy on Brexit has been based on an assessment that no responsible or rational British government would subject the UK to a no-deal Brexit. This made it sensible to offer the British a stark choice between accepting no hardening of the Border or going for no deal. However, by the autumn we may be dealing with a Johnson-led government that is neither responsible nor rational.
In these circumstances, Ireland will be facing a situation where the backstop, designed to avoid any hardening of the Border, could cause the imposition of the hardest of economic borders, north-south and east-west. Worse, with time so short and positions so entrenched, it is not clear that Boris Johnson or Leo Varadkar could compromise even if they wanted to.
The Brexit story has gone on for so long that it has become tedious to many people. Unfortunately, this autumn it may be about to get very dramatic.
Ronan McCrea is professor of constitutional and European law at University College London
This article was originally published by the Irish Times and is reposted with permission.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.