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Cast-iron and vital, or an anti-democratic bureaucracy: what is the Irish backstop?

Should it be for a limited period of time or not? Should it apply to the UK as a whole, or just Northern Ireland?

EU referendum Boris Johnson, who wants to scrap the backstop, waits for a train at Doncaster Railway Station. Source: PA Archive/PA Images

WAITING, ON THE Irish backstop.

On 8 December 2017, at the tailend of phase one of moulding the Withdrawal Agreement into shape, a carefully worded short phrase was included by EU and UK negotiating teams with the aim of preventing a hard border from reappearing on the island of Ireland. 

The backstop, also known as the Irish Protocol, would ensure that there would be “regulatory alignment” between Ireland and Northern Ireland after Brexit, no matter the negotiating stances or demands either of them would make. 

Avoiding a hard border is something that Ireland, the UK and the EU have all said they want to do – but it’s proved to be one of the most contentious parts of an already tense Brexit debate. It’s formed the basis for many a political column in Ireland and the UK, and has been politicised massively

Since the freshly ‘elected’ Boris Johnson has taken the reins at 10 Downing Street, he’s called the backstop “anti-democratic”, adding to previous statements he made about it where he said it needed to be “scrapped”, and “binned”. 

For Johnson to succeed in his Brexit policy, the platform upon which he became Tory leader, he needs to either get a Brexit deal without the backstop, or push for a no-deal Brexit – the only two options to get the UK out of the EU by 31 October, as he promised.

So what does this mean for the backstop – what is so unpalatable about it, and is there room for manoeuvre so we can reach a compromise?

The Protocol

original (4) Source: European Commission

Ahead of negotiations with the UK, the EU said it was prioritising three issues, or red lines; these were a ‘divorce’ settlement (or a fee for leaving the EU); securing the rights of EU citizens living in the UK; and stability for Northern Ireland.

The backstop would become the solution for the third priority here. 

Put simply, the backstop ensures that a hard border won’t reappear on the island of Ireland, no matter the outcome of Brexit or the subsequent trade talks between the EU and UK. The term ‘backstop’ was a sporting term originally: in cricket, it’s the person that keeps the other team from scoring; and in baseball, it’s the net that stops innocent onlookers getting injured by a long-shot. Apt.

Put slightly more complicatedly, the backstop means that Northern Ireland would stay ‘aligned’ to the regulations of the Single Market and the Customs Union if the EU and the UK cannot agree a Free Trade Agreement (FTA) that would share the same customs rules by December 2020.

The EU has said it can’t discuss future trading matters with a current member state, so the UK has to leave the EU before they can discuss trade. This is what led to the Brexit ‘divorce’ deal, or the Withdrawal Agreement, which outlines the conditions upon which the UK leaves the EU.

Originally, the backstop was to apply to just Northern Ireland, and the UK would be free to put in place whatever customs and regulatory rules it wanted. But when the wording was being finalised in December 2017 the DUP, which is propping up the Tory government in Westminster, said that Northern Ireland couldn’t be treated differently to the rest of the UK (despite other societal changes already in place).

Theresa May then flew back from Brussels to London, to discuss a more acceptable wording, which would be agreed and signed off on by the end of that week. After this, the backstop would also mean that there would be “no new regulatory barriers develop (sic) between Northern Ireland and the rest of the United Kingdom”. 

Boris Johnson arrives as Prime Minister to Downing Street and makes his first speech. London, UK. 24/07/2019 Boris Johnson wants rid of the backstop - will he get his way? Source: Ik Aldama

As it stands, the exact wording on page 303 of the draft Withdrawal Agreement, is:

To avoid a hard border on the island of Ireland: “RECALLING the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls, and bearing in mind that any future arrangements must be compatible with these overarching requirements”.

To avoid a border along the Irish Sea: “UNDERLINING the parties’ shared aim of avoiding, to the extent possible in accordance with applicable legislation and taking into account their respective regulatory regimes as well as their implementation, controls at the ports and airports of Northern Ireland”.

Government launch of Ireland's new Policy for International Development Varadkar and Coveney have been staunch defenders of the backstop. Source: PA Wire/PA Images

These lines meet the objectives of those on both sides of the Brexit negotiating table… but this is the part that has caused the problem:

NOTING that nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market.

The whole of the UK being in the backstop means that they cannot strike free trade agreements with other countries, or set their own standards of customs rules and regulations – and being able to decide their own rules was a big part of the hoped-for Brexit benefits.

To avoid the backstop being needed, there would have to be the same, or very similar custom rules and regulations for products, food, animals, people and vehicles between the UK and the EU – or Northern Ireland and Ireland. If this doesn’t happen, the changes could be as dramatic as two different time zones on the island of Ireland. 

But until talks between the EU and UK on trade begin, it won’t be clear how many regulations and customs checks will be the same or different, and because of that it isn’t clear whether the backstop is necessary.

Efforts to find compromise

Since the backstop was agreed between the EU and the UK, there have been bitter rows about whether it’s “vital”, especially as it’s been cited as the reason why Brexiteers voted against the Withdrawal Agreement in such historic numbers.

Among the compromises that have been considered to ease the concerns of Brexiteers, have been:

Should it be for a limited period of time or not? The UK side says it should be time limited, which would give them time to work out a Free Trade Deal, or if not that, give time for technological solutions that it argues would preserve a frictionless border.

The UK side has also argued that a Brexit deal with this type of backstop is better than no deal.

The EU, so far, has responded by saying it needs to be an “all-weather” backstop, and would be pointless if it were temporary.

If the backstop ends in five years’ time, for example, and there’s no Free Trade Deal or new technology, a hard border on the island of Ireland couldn’t be avoided.

Would it apply to the UK as a whole, or just Northern Ireland? Theresa May’s government wanted it to apply to the whole of the UK, but this has been shot down by Johnson’s government, who wants the backstop scrapped entirely. 

Theresa May also said previously that if at the end of 2020, a trade agreement isn’t struck, the UK would choose between a UK-wide customs backstop or a short extension of the implementation period, which would just buy more time in trade talks.

If there’s no agreement on the backstop – as in, if the UK government won’t agree to “regulatory align” with the EU – then there is no Brexit deal and the UK will go crashing out of the EU.

Ironically, if the UK does go crashing out of the EU, it’s most likely that a hard border will automatically reappear on the island of Ireland anyway – which is something German Chancellor Angela Merkel admitted to previously.

The EU has also said it has costed erecting a variety of borders in Ireland.

Taoiseach Leo Varadkar warned EU leaders and the new UK government, that if a hard border does return to the island of Ireland, it could see a return to Troubles-era violence.

General Election 2017 aftermath Theresa May and her colleagues sit with Arlene Foster and the Tory leadership, June 2017. Source: PA Archive/PA Images

From the outside, it seems as though both the EU and UK thought that the other side’s stance on the backstop would soften.

Theresa May repeatedly said that she wouldn’t accept a deal that would “carve off” Northern Ireland from Great Britain, and that she would preserve the integrity of the United Kingdom.

Barnier tried to “de-dramatise” the idea of customs checks under a Northern Ireland-only backstop, saying that it would simply increase the number of goods and vehicles checked at ports and airports.

Theresa May’s stance on the backstop softened as she ran out of options to get her Brexit deal through parliament, and ended up with the UK-wide customs deal that we currently know as the backstop, which has been voted down by the British parliament.

(Even if it was removed from the Withdrawal Agreement, it doesn’t look like the House of Commons would pass it.)

Alternative arrangements, and technological solutions to solve the border issue have been suggested as a way of making the backstop unnecessary – but an internal document at the Home Office previously suggested that the technology needed to avoid the UK adopting the EU’s rules, wouldn’t be in place until 2030.

Added to that, any technological solutions to avoid a hard border would involve some sort of hardware, which could be targeted by dissidents as a symbol of a divide in Ireland.

So, the backstop has become a symbol of the scale of the division between Brexiteers and the EU – for some in the UK it represents unnecessary bureaucracy that prevents people from “getting on with it”, while to the EU, it represents a safety net for peace in one of its regions. 

And that divide might lead us to a no-deal Brexit in three months’ time.

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A version of this article appeared on TheJournal.ie in October 2018, and has been updated to reflect a change in the political landscape.

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