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What exactly is the Irish backstop, which could derail a final Brexit deal?

Should it be for a limited period of time or not? Would 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

THE IRISH BACKSTOP.

It’s almost been a year since the UK government and the EU agreed to a political safety net for Ireland, and we’re still no closer to agreeing the details of what it would look like.

Further than that, the UK government has created uncertainty over whether the final Withdrawal Agreement will include a backstop, which is why the EU and Irish government have been so staunch in repeating that it was a vital, “cast iron guarantee” of no border in a final Brexit deal.

Former foreign secretary Boris Johnson, who’s among the candidates to become the next Tory leader, has said that the backstop should be scrapped completely.

On the latest episode of the Guardian ‘Politics Weekly’ podcast, one contributor Jonathan Lis said that there needed to be “less illusion” at this “11th hour, or five minutes to midnight” about the backstop that Theresa May signed up to in December.

“Michael Gove, who is not a stupid man, and Boris Johnson and others have been falling over themselves to say that they didn’t understand what their own government signed up to in December. Now that is not acceptable.

This idea that there’s no unified government position at the end of the negotiations, is unprecedented in its level of incompetence.

So if you haven’t quite grasped what exactly the backstop is, you’d be forgiven.

Here’s what it is

Brexit Taoiseach Leo Varadkar (centre), Tanaiste Simon Coveney (right) and Minister for European Affairs Helen McEntee. Source: PA Archive/PA Images

The backstop is a sort of Plan B, insurance policy, or safety net that would kick in if a better deal isn’t agreed in the second stage of Brexit talks, which will focus on trade (a part of the Future Relationship).

The backstop would kick in at the end of the transition period – which starts on 29 March and ends on 31 December 2020 - if a final deal is agreed. 

original (4) Source: European Commission

Put simply, the backstop ensures that Northern Ireland would stay “aligned” to the regulations of the single market and the customs union if there is still no other solution that would avoid infrastructure along the Irish border.

To avoid a border, it means there would have to be the same or similar custom rules and regulations for products, food, animals, people and vehicles between the UK and the EU – or Northern Ireland and the EU.

“Regulatory alignment” is the guarantee, which is important: it doesn’t mean the regulations would be the exact same, but similar enough to avoid a hard border.

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.

But almost immediately after the deal was struck, there’s been disagreement over what the backstop is. For example:

Should be for a limited period of time or not? The UK says it should be time limited, the EU responded by saying it needed to be an “all-weather” backstop, and would be pointless if it were temporary.

Would it apply to the UK as a whole, or just Northern Ireland? The UK wants it to apply to the whole of the UK until a better deal is made. But the EU say that it can only apply to Northern Ireland, as its whole point is to preserve the peace process. It also says that it’s less of a hassle for the backstop to apply to a small region than it would the entire UK.

If there’s no agreement on the backstop – as in, if they can’t agree on “regulatory alignment” on the island of Ireland that would mean no infrastructure is needed – 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 last week.

Taoiseach Leo Varadkar warned EU leaders at the end of the October summit, that if a hard border does return to the island of Ireland, it could see a return to Troubles-era violence.

Political influence on the backstop

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

The backstop was first decided upon in early December 2017, but although the EU and UK came to an agreement, the final signing was delayed after the DUP said it was unhappy with the wording. 

The party wanted an assurance that a border would not appear along the Irish Sea, which the backstop wording had remained helpfully vague on before the DUP’s input.

But last December, as the EU and UK were on the cusp of an agreed backstop, Theresa May flew out from Brussels to meet the DUP leadership to hear their concerns (as its 10 Westminster MPs are propping up her Tory government).

After this, the backstop included a line confirming that there would be “no new regulatory barriers develop (sic) between Northern Ireland and the rest of the United Kingdom”. 

If the EU negotiators thought that the UK’s stance on this would soften, they were wrong. Theresa May has 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-dramatize” the idea of customs checks on trade between Great Britain and Ireland, saying that it would simply increase the number of goods and vehicles checked at ports and airports.

But as recently as yesterday, May told the House of Commons: “Anything that effectively creates a customs border along the Irish Sea is not acceptable.”

Many theorise that the DUP is a major part of May’s inability to strike a deal: although there are already differences in social policies between Northern Ireland and Great Britain, unionists fear that if the EU were to treat the North as an exception for peace-keeping reasons, that it could eventually lead to a united Ireland.

So, what’s the latest?

Belgium EU Brexit British Prime Minister Theresa May. Source: Francisco Seco

Among the discarded solutions to the Northern Irish border issue that have been shot down over the past year are “Oyster-card-like technology” to check the movement of goods and people; the Canada border which was dismissed by the Irish government as “efficient, but it’s still a hard border” and a backstop to the backstop

Yesterday in the House of Commons, May said that they were 95% agreed on a Brexit deal, but that there remained ”one real sticking point”. The backstop.

She said that four things needed to happen now, just five months before her country leaves the European Union.

Firstly, she wants the UK and EU to agree to a temporary customs deal so that the Northern Ireland only proposal is no longer needed, adding that the relationship between the North and the UK was integral to the Good Friday Agreement and that “nothing we agree with EU under Article 50 should risk a return to a hard border”.

Secondly, and most importantly, she said that she wanted the option to extend the implementation period as an alternative to the backstop, despite describing an extension as “undesirable”.

“By far the best outcome for the UK, for Ireland and for the EU – is that our future relationship is agreed and in place by 1st January 2021… But the impasse we are trying to resolve is about the insurance policy if this does not happen.”

If at the end of 2020 our future relationship was not quite ready, the proposal is that the UK would be able to make a sovereign choice between the UK-wide customs backstop or a short extension of the implementation period.
There are some limited circumstances in which it could be argued that an extension to the implementation period might be preferable, if we were certain it was only for a short time. 

(The third point she made was that neither of these options could be indefinite, and the fourth was that Northern Irish businesses enjoy full access to Great Britain.)

“We have to explore every possible option to break the impasse and that is what I am doing,” she said. So for now, the ball is in the EU’s court.

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