The Irish backstop does not have to be seen as a Brexit trap

5 Jul 2019

 

With Theresa May finally leaving the office of Prime Minister, many thought that her Brexit deal would disappear with her. But alas, the dreaded Withdrawal Agreement the Political Declaration may still be the key to unlocking the current impasse in Westminster, as suggested by the two remaining contenders to replace May. Both Boris Johnson and Jeremy Hunt have cited changes to the backstop as a way out of the Brexit mess, yet neither has elaborated on how exactly they plan to achieve this objective.

 

The backstop refers to an arrangement for the UK and the EU that avoids a ‘hard border’ between Northern Ireland (NI) and the Republic of Ireland (RoI). It applies in the case the two sides are unable to agree and implement arrangements for their future relationship before the end of the transition period. This would consist of keeping the whole of the UK in a single customs territory with the EU in addition to NI applying specific rules pertaining to the EU’s internal market. 

 

By keeping the UK in a customs union, and by keeping NI in some elements of the single market, no checks on goods at the border between NI and the Republic are needed. The Withdrawal Agreement also states that the UK shall not be prohibited from ensuring the free movement of goods between NI and the UK; EU law on trade and goods shall apply to the extent required to avoid the need for checks and to comply with international obligations, most notably those under the 1998 Belfast Agreement.

 

Despite this, the backstop remains a significant concern for many MPs, as it does not allow the UK to exit from it without EU approval. The additional legal instruments concluded in March do little to allay these apprehensions since they fall short of providing a unilateral exit without breaching international law. Accordingly, the backstop has been demonised as a trap; a way for the EU to keep the UK tied to its customs union without a say on its rules. 

 

So long as the UK remains in a customs union with the EU, it is restricted in its ability to conclude trade deals with other countries. A customs union requires all the participating countries to apply the same import duties and other regulations on goods from third countries. Accordingly, the UK would not be able to conclude trade deals that contravene its obligations under the customs union.

 

Despite these reasonable worries around the backstop, it could nevertheless be argued that the arrangement may not necessarily be a trap after all. There are three reasons why this might be the case.

 

Firstly, the backstop is not very comprehensive; it achieves the bare minimum required to avoid a hard border, which includes any physical infrastructure or related checks and controls. It does this by including the UK in a customs union and NI in some aspects of the single market. The limited arrangement therefore omits many other important issues, including fishing and security cooperation. As such, it is difficult to see the backstop as an arrangement that would satisfy the EU, let alone the UK, in the long-term, fuelling a desire to replace it with something better.

 

Secondly, the EU originally proposed that the backstop only cover NI and not the whole of the UK. As already mentioned, the backstop is only designed to avoid the need for a hard border between NI and the Republic, and thus the EU did not see the need for a UK-wide customs union to achieve this. 

 

However, Theresa May vehemently rejected this, along with the DUP, since a NI-only backstop, as well as being constitutionally unpalatable, would create friction between NI and GB, and this would have damaged the integrity of the UK’s own internal market. 

 

Thirdly, the Withdrawal Agreement allows for elements of the backstop to be suspended by future agreements. This is in addition to the fact that the backstop does not represent a ‘permanent relationship’ and is ‘intended to apply only temporarily’. Thus, so long as the UK and the EU can agree on so-called ‘alternative arrangements’ to replace the backstop, then it could eventually be terminated altogether.

 

Moreover, it is also worth mentioning that a time-limit to the backstop may not be as desirable as originally thought. A hard date would simply create a negotiating cliff-edge where the negotiators will be pressured to conclude an agreement on time. 

 

Accordingly, whatever has been agreed within the arbitrary timeframe may not necessarily be of the highest quality. Negotiating a trade agreement is typically a slow affair because it involves a process of trust-building between the negotiating parties and domestic consultations with businesses and other stakeholders to ensure a deal that would actually be economically beneficial. Thus, an end-date with the option for an extension may be more suitable, but whether this would fly in London or in Brussels is uncertain.

 

Thus, the backstop, for all of its flaws, might be something that Parliament would be willing to swallow with a few tweaks. One could be the agreement of a negotiating timetable annexed to the Withdrawal Agreement providing a guide as to when certain aspects of the future relationship should be concluded. 

 

The UK could also seek to establish a forum for North-South communities to provide their input on the border issue, akin to the ‘Irish Border Council’ suggested by Matt Hancock, the Health Secretary, when he was running for the Tory leadership.

 

Ultimately, whoever the next Prime Minister is should not be discouraged by the EU’s repeated mantra that the Withdrawal Agreement cannot be renegotiated. So long as the proposal on the backstop avoids a hard border in Ireland, the EU will listen. After all, the alternative, a ‘no-deal’ Brexit, is in nobody’s interest.

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