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Supremacy of law will be ‘backstop’ stumbling block, says O’Brien

12 Mar 2019 / Brexit Print

Supremacy of law will be ‘backstop’ stumbling block

Ireland needs to give urgent consideration to how it builds strategic alliances in a post-Brexit Europe, says former junior minister for EU Affairs Lucinda Creighton (pictured).

Creighton was speaking on Brexit as part of the Matheson Knowledge insight series, at the Marker Hotel, Dublin, on 11 March.

“We need to consider strategically where our interests lie, and with which countries, and develop a whole plan around that.

“The last time we developed a white paper on our relationship with the European Union was back in the 1970s, under Garret FitzGerald, so it’s definitely time to update it.

“The EU has expanded exponentially. There’s a whole new dynamic and new responsibilities at EU level, and we haven’t really adapted to that.

“We also need to beef up our presence in Brussels,” she stated, given the huge presence of British-industry bodies representing their global investment interests.

“We need to at least match it, if not step into the breach, and ensure that our interests as an open economy and as a pro-business, pro-investment member state are represented at the EU table.

“The only way we can do that is by putting boots on the ground, having a clear agenda and strategy, but backing that up with people working in our permanent representation, and also representing industry in Brussels.

Creighton believes that Britain has failed to send out to Brussels negotiators who genuinely understand EU law.

She believes that, despite the presence of excellent British civil servants working across the EU institutions at a very high level, “the UK government has basically been withdrawing from the EU for about 15 years.”

Creighton believes that “prime ministers have surrounded themselves with people who are ideologically aligned to them, rather than advisors who have genuine EU expertise”.

Creighton says that this approach has been to the fore since David Cameron’s premiership, and continues with Theresa May’s government as well, where she has sent negotiators who simply don’t understand how the EU works.

“They have been hugely disadvantaged as a result,” she said.

Matheson managing partner Michael Jackson said he had been surprised at the lack of attention paid to dispute resolution, post-Brexit, as the end-point of negotiations approached.

“I’m still surprised at how little time has been spent talking about how disputes between both sides will be arbitrated.

"The EU continues to insist on the supremacy of the CJEU, and the UK continues to insist on not being subject to the supremacy of the CJEU.”


He suggested that an EU-Canada Comprehensive Trade Agreement (CETA) style of arbitration should be implemented, with each side appointing a certain number of arbitrators, and an independent chair, to resolve disputes.

This would allow both sides to feel there is a sufficient degree of trust in the system to enable them to resolve disputes, without either side feeling they have totally lost face in the discussions,” he said.

He revealed to the seminar that Matheson had received its first Brexit-related instructions the day after the referendum.

Tara Doyle (head of the asset management and investment funds group at Matheson) said there had been a strong collaborative effort since the 2016 referendum to identify the legislative changes needed from Government for the financial services industry.

Doyle believes that the Irish asset-management industry is now 90% ready for the changes Brexit will bring as a result of a lot of fast-paced preparatory work.

“The regulator put in place a fast-track system for [the] licensing of applications, and the Government worked primarily through the IDA to make sure the companies that wanted to relocate to Ireland had the resources to do it, and were familiar with the infrastructure,” she told Gazette.ie.

Tactically flawed

Ireland’s Brexit negotiation position has been tactically flawed and has backed all parties into a corner and become a major stumbling block, according to economist and commentator Dan O’Brien.

Though the backstop was designed to prevent a border on this island, it could well bring that about, he believes.

He said that he was immediately fearful about the backstop, “because how markets are managed is a constitutional issue”.


“It proposed that Northern Ireland leave the UK’s single market and customs territory, and remain in the EU’s version of those market mechanisms,” he pointed out.

Markets and constitutions are inherently tied up in terms of the supremacy of law, he said.

Ireland had a constitutional referendum, both on joining the Common Market in the 1970s and the single market in the 1980s.

If Northern Ireland were to remain in the EU single market and leave the UK’s single market, then EU law would be supreme over UK law in the region, he pointed out.

“It would be supreme in Larne, but not in Stranraer. That is, like it or not, a constitutional issue,” he said.

Who makes the laws is also a significant constitutional issue, he said.

'Let's be honest about the facts'

“I’m not a Unionist, but these are the facts, and let’s be honest about the facts,” he said.

Though the backstop was designed to prevent a border on this island, it could well bring that about, he believes.

O’Brien’s view is that the Irish negotiators should have continued grinding down the British, without putting them into a corner.

Lucinda Creighton concurred about the failure by Dublin to understand the mentality of Northern Unionists, who see their relationship with London as central to their existence. She also favoured a vaguer use of language around the backstop.

“It’s a national sport at this point to crack jokes about the DUP, but this is about Unionism,” she said, pointing out that Nobel laureate David Trimble was the first to cast doubts about the backstop.

Existential issue

This is an existential issue for Unionism she said, and at no point did we try to understand that a separate arrangement, such as the backstop, would never be acceptable to the North.

She criticised former premier David Cameron for his lack of understanding about how the EU works.

Current PM Theresa May has also got rid of her EU permanent secretary and sent in to negotiate “a barrister who knows lots about UK law, but nothing about the European Union”, she said.

Massive problems

O’Brien believes the Irish negotiators didn’t think that far ahead to realise that there were constitutional issues involved that will cause massive problems, he believes.

While Matheson partner Tara Doyle described political consensus around Brexit, O’Brien saw only groupthink.

“Groupthink is not a good idea,” said O’Brien. “We’ve learnt that to our cost in the past.”

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland