Squaring the circle with the Irish backstop

15 Feb 2019

The UK’s withdrawal from the EU has never been simple, and Parliament has now added another complexity to the story. While Theresa May was able to reach a Withdrawal Agreement with the EU in November last year, she has faced resistance in House of Commons, which convincingly rejected her deal by 230 votes last month.

 

Perhaps the most contentious aspect of the Agreement is the Irish backstop. More specifically, the backstop lays out the protocol that will govern the Irish border in a post-Brexit scenario. The simple objective of the backstop is to eliminate the need to erect a hard border along the border between Northern Ireland and the Republic of Ireland, or between the islands of Ireland and Great Britain. Such an objective pays due regard to the 1998 Belfast Agreement and the continuation of peace in Ireland, a mutual aim of both the UK and the EU.

 

However, there are two aspects to the backstop that appeared to be particularly loathed. The first is that it keeps the UK in ‘a single customs territory’ with the EU, meaning that the UK would be unable to strike its own trade deals with other states outside of Europe. The second is that the backstop can only be terminated by mutual consent of the UK and the EU. Thus, there is no mechanism within the backstop by which the UK can exit unilaterally. Accordingly, the fear from critics is that the UK could remain tied to the EU indefinitely against its will, preventing the UK from striking its own trade deals post-Brexit.

 

These fears prevail despite the assurances provided within the treaty itself and by the EU. The Agreement states that both the UK and the EU are to use their ‘best endeavours’ to conclude the necessary future agreements to supersede the backstop ‘in good faith’ and ‘expeditiously’. This is in addition to a letter from Jean-Claude Juncker and Donald Tusk to the Prime Minister, indicating that the backstop would only be temporary and that the Commission is eager to get to work on the future arrangements.

 

Yet, for many the backstop is still a major concern, so much so that the government has been prompted to pursue last-minute renegotiations with the EU. If the backstop concerns can be availed, the government might be able muster enough support for the deal to get through the Commons.

 

In pursuing such negotiations, however, the UK will have to contend with the fact that the Withdrawal Agreement itself is not up for renegotiation, according to the EU. Some could interpret this as simply an initial reluctance to discuss certain aspects of the Agreement rather than a stubborn refusal. After all, agreeing a deal is in the interests of the EU as much as it is for the UK. 

 

However, one should also note that the Withdrawal Agreement, as it currently stands, essentially contains everything the EU could have wanted, including financial contributions from the UK post-Brexit and securing rights for EU citizens during the transition period. Thus, the EU may only be willing to compromise on the backstop issue if the UK is willing to compromise on other elements.

 

Yet, this would depend on the kind of compromise that the UK is seeking to extract from the EU. May has consistently argued that she will be able to get legally binding changes to the deal to address concerns around the backstop. But the content of those changes remains, for the most part, a mystery. According to a joint statement from May and Junker released last week, the prospect of further discussions on the content of the Withdrawal Agreement remains unlikely.

 

However, other options were conveyed in the statement which the two sides could possibly work with. One is to add further to the Political Declaration, a document consisting of a statement-of-intent for future relations. However, it is hard to see how any further additions to this part of the deal would negate the need for the backstop unless what was included was a commitment by the UK to stay in the EU’s customs union. Given the consistent stance of the UK government to not pursue such a policy from the beginning of the negotiations, this hardly seems realistic.

 

Alternatively, the statement did commit the two sides to talks to find ‘a way through’ that would ‘gain the broadest possible support’. Such a pledge is rather vague in itself, evading identifying any real objective or destination. Even so, given that the statement categorically shuts downs any renegotiations of the Withdrawal Agreement, the continuation of an UK-EU customs union is highly unlikely, the only way to break the impasse may be with a joint interpretative declaration, similar to that annexed to the trade agreement between the EU and Canada.

 

Such declarations do not necessarily modify the legal effects of a treaty, but they can clarify the meaning of certain provisions within a treaty. Thus, an interpretative declaration with the EU could state that the backstop is meant only to be temporary and cannot form a permanent part of any future relationship. The UK might go even further and insist that the word ‘temporary’, for the purposes of the Agreement, should mean a specified number of years, effectively putting a time limit on the backstop.

 

In order to secure this kind of joint declaration, one of the two sides will need to offer a compromise of some sort. If not, and if no other resolution can be found, then a ‘no-deal’ scenario would be more likely than ever. It is hardly unusual for negotiations to get to this stage though, especially in this political context where the stakes are high. But the question for both sides at this point is simple: which redlines will be turning pink?

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