As the talks between the European Union and the United Kingdom on the Border backstop enter a critical stage this week, maybe the time has come to fall back on the Irish solution of an empty formula that can mean whatever the parties involved want it to mean.
The term “empty formula” was devised by Éamon de Valera in 1927 to explain his volte face on the oath of allegiance, one of the key provisions of the Anglo-Irish Treaty of 1921, and the primary cause of the Civil War which brought such bloodshed and misery to this country.
Just a few years after justifying his opposition to the treaty on the basis of the oath, de Valera decided in the summer of 1927 that it was, after all, an empty formula which his TDs could take in good faith. It was a brazen and astonishing U- turn but it provided the basis for the development of democratic politics in this State.
A similar level of creativity might help British prime minister Theresa May as her attorney general Geoffrey Cox struggles to find the language to alter his earlier legal advice to the British government that the UK could be trapped in the backstop indefinitely.
The British need a deal more than anybody else to avert a catastrophic crash out of the EU, but have got themselves hung up on opposition to a backstop which is designed never to be implemented. That is standing in the way of talks on a trade deal, which is vital to the economic wellbeing of the country.
On the Irish side the legitimate desire to ensure there is no return to a hard Border has prompted unwavering commitment to the insurance policy of the backstop. The problem is that if the backstop precipitates a no-deal Brexit we will end up with the very border the backstop is designed to avoid.
Loyalty to Ireland
The EU has supported the backstop partly out of loyalty to Ireland but also as a negotiating tactic designed to force the British into opting for a soft Brexit which would involve continuing membership of the customs union and close regulatory alignment with the EU. Such a deal is tantalising close but the UK obsession with the backstop is standing in the way.
Even the Democratic Unionist Party MPs, who have been such staunch opponents of the backstop, must face the prospect that if there is a no-deal Brexit the reintroduction of a hard Border could actually generate the momentum for a border poll – the thing they fear most.
Any legal clarification would probably be sold by the British side as a significant change to the backstop
It is clearly in the interests of the UK, Ireland and the EU that the backstop should not prevent them from getting the kind of Brexit that would suit them all. While the primary cause of the problem is the capitulation of the British government to the minority of right-wing Conservative MPs who virulently oppose the backstop, all of the actors, apart from the right wing of the Conservative Party, have a strong interest in finding a way around it.
Although the EU has rightly rejected the prospect of reopening the withdrawal agreement, as is being sought by the UK, a legal instrument clarifying the meaning of that agreement as it relates to the backstop is being touted as the way around the problem.
The Tory right
Such a clause would have to be legally binding to have any impact on the numbers in the House of Commons and even then would be likely rejected by the Tory right. With the Labour Party beginning to fracture, the course of events in the Commons in the coming weeks is completely unpredictable, but some redefining of the backstop would boost the chances of a reasonable deal being accepted.
Any legal clarification would probably be sold by the British side as a significant change to the backstop. While it would obviously be difficult for the Irish Government and the EU to bite their tongues in that scenario, it would be in both their interests not to be too blunt. If the British want to foster a perception that the backstop has been changed, even if any clarification only amounts to a restatement of the obvious, so be it.
While there may be some political difficulties for the Irish Government in appearing to accept a compromise, it would be much more dangerous in the longer term to become wedded to a hardline stance for fear of losing face. In the coming weeks Taoiseach Leo Varadkar will have to be careful not to say or do anything to block off possible avenues of retreat for the British.
Being seen to stand up to the British has paid off for him in terms of political dividends as well as forcing them to grapple with the reality of what Brexit means. Knowing when it is time to pull back, or at least give the appearance of doing so, will be the real test of whether he has what it takes to be a statesman.
Of course there is no guarantee that sense will prevail on the British side but if they do seek a way out as the cliff edge approaches, we will be acting in our own interests as well as theirs, if we allow them to find an empty formula to cover their retreat.