The Irish border challenge should be agreed between Dublin and London

Taoiseach Leo Varadkar (left) and Michel Barnier in Dundalk. Dublin is now implicated in Mr Barnier's theological backstop over-reach
Taoiseach Leo Varadkar (left) and Michel Barnier in Dundalk. Dublin is now implicated in Mr Barnier's theological backstop over-reach

The successful Gina Miller case, in December 2016, though ultimately politically fruitless, haunted the start of the fixed two-year period for the UK to withdraw from the EU.

Might there be another case in the making, this time politically fruitful, which helps achieve Brexit on March 29 2019, on the basis of a draft withdrawal agreement devoid of the Irish backstop?

On January 15 2019 — a date etched in history — the UK parliament voted against the draft EU withdrawal agreement, by 432 votes to 202.

The prime minister’s unreconstructed plan B of January 21 2019, did give rise to the odd flash of new thinking among some MPs, including the idea of the Irish and UK governments negotiating ‘no hard border’ bilaterally, under the Belfast (or Good Friday) agreement, now that EU multilateralism has failed catastrophically.

The Belfast agreement of April 10 1998 helped end the Northern Ireland troubles. Among the institutions created was the British-Irish intergovernmental conference, ‘to promote bilateral co-operation at all levels on all matters of mutual interest within the competence of both governments.’

All decisions are to be ‘by agreement’ between London and Dublin.

The Belfast agreement is premised on popular consent. UK statutory law was to provide for no change in the status of Northern Ireland, ‘without the consent of the majority of people … voting in a poll’. And Irish constitutional law was to require, for a united Ireland, ‘the consent of a majority of the people, democratically expressed, in both jurisdictions.’

Consent, I submit, is here wider than simply a change of status: it relates to changes of governance, short of Northern Ireland moving from one state to another.

The British-Irish intergovernmental conference met last in Dublin, on November 2 2018. It discussed bilateral cooperation after Brexit, but not how to get through the present impasse.

That is because Leo Varadkar and Simon Coveney, from shortly after Theresa May’s notification to Brussels of March 29 2017, had decided to operate solely as part of the EU27, in support of Michel Barnier’s negotiating task force.

Dominic Raab MP, when a UK minister, was to be told that Martin Selmayr, the top Eurocrat, and others in the commission, believed that ‘losing Northern Ireland was the price the UK would pay for Brexit.’

Resisting conspiracy theory, the actions of the EU have been focused on using the Belfast agreement, incorrectly I submit, to exaggerate the problem of the Irish border, and effectively split the UK state.

On December 8 2017, the UK and EU agreed politically a joint report, which contained the idea of a backstop: ‘In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South co-operation, the all-island economy and the protection of the 1998 Agreement.’

The UK made many mistakes in the negotiations, not least the separation of a withdrawal agreement from a future relations agreement, but Theresa May and Ollie Robbins surpassed themselves in thinking the backstop was practically manageable.

In negotiations, one should not surrender to the other at the start, and then invite the other to make a mutually satisfactory agreement.

The draft withdrawal agreement of November 14 2018, all 585 pages, proved this point, with pages 302 to 475 being the Irish protocol (an extraordinary exercise in EU chest beating). The treaties to run the EU, in contrast, are only some 400 pages.

According to the English attorney general, Geoffrey Cox QC MP, Northern Ireland is to remain in the customs union (separate from Great Britain), effectively in the single market (separate from Great Britain), and ‘in international law the Protocol would endure indefinitely’.

The clear implication (unstated) is that the Irish government would speak for Northern Ireland within the EU after the UK has withdrawn.

We now have the Belfast agreement off to one side, and the draft EU withdrawal agreement centre stage, with extraordinary division in the UK among people and politicians.

The problem of the Irish border could have been agreed between the two states. Technology, as experts have affirmed, is the means to an end.

There is exceptional political agreement on no hard border. And London and Dublin should have agreed to co-manage it as one border, under strand three of the Belfast agreement (which is not even mentioned in the draft withdrawal agreement).

That should have been a joint UK/Irish input to the Brussels negotiations. Now, however, the Irish are implicated in Michel Barnier’s theological backstop over-reach. A no-deal Brexit is frightening Brussels. Whatever effect it will have upon the UK, the consequences for the Republic of Ireland will be greater.

Timing is everything, in law as well as politics. In the next frenetic few weeks, a legal challenge, in London and/or Dublin, might be the only way to force the two premiers into the British-Irish intergovernmental conference, to negotiate no hard border in accord with the principle of consent.

• Dr Austen Morgan is a barrister in London (at 33 Bedford Row) and Belfast, and author of The Belfast Agreement: a practical legal analysis (London 2000). This article was published in the Daily Telegraph on January 23