The Irish Backstop

The Irish backstop is the familiar name given to a draft agreement between the UK and the EU, that aims to prevent a hard border in Ireland after the United Kingdom leaves the European Union. Known formally as the Northern Ireland Protocol, it is a standalone (draft) treaty appended to the proposed Brexit withdrawal agreement enabling the United Kingdom to leave the European Union with the least disruption possible.

The backstop aims to prevent a hard border by keeping Northern Ireland in some aspects of the Single Market until such time as a technical or other solution can be delivered that will permit the border to be effectively invisible. The proposal also provides for the UK (as a whole) to have a common customs territory with the EU until the solution is delivered, to avoid the need for customs controls within the UK (between Northern Ireland and Great Britain). The “backstop” element is that the arrangement would continue to apply until a solution is found, even if there is no trade agreement between UK and EU by the end of the transition period. Although the Irish government and Nationalists in Northern Ireland strongly support the protocol, Unionist opposition is seen as a major reason for Westminster’s decisions to refuse to ratify the Withdrawal Agreement as a whole.

The Northern Irish border will be the only significant land border the European Union will have with the United Kingdom after Brexit, a difficult to control border due to a lack of significant geographic barriers. The completion of the Single Market in 1992 and the Good Friday Agreement in 1998 were seen as making it possible to dismantle what had previously been extensive border infrastructure between Northern Ireland and the Irish Republic.

In Irish government planning meetings before the referendum, the Irish border was identified as an important issue in the event of a vote to leave. From the time the referendum result was clear the Irish government told other EU countries that they considered that an open border on the island of Ireland was an essential element of the Good Friday Agreement.

Initially, there were bilateral talks between Dublin and London to devise technical solutions to border issues.


 

Initial Backstop proposal

EU Task Force
On 7 September 2017, the EU Task Force published guiding principles for the dialogue on Ireland / Northern Ireland which reiterated and expanded the principles given in 29 April guidelines, in particular, the protection of the Good Friday Agreement and the continuation of the Common Travel Area.
On 9 September 2017, the EU Commission published several negotiating papers, including “Guiding Principles on the Dialogue for Ireland/Northern Ireland”. In it, the EU concedes/declares that it is the responsibility of the UK to propose solutions for the post-Brexit Irish border. The paper envisages that a “unique” solution would be permissible here; in other words, any such exceptional Irish solution should not be seen as a template for post-Brexit relationships with the other EU members on border and customs control matters, for example, ETIAS.

Prime Minister Theresa May said in October 2016 that there would be “no return to the borders of the past”.

December 2017 Joint Statement
In December 2017, the negotiating teams from the European Union and the UK proposed an agreed draft:

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

Although initially approved by the British Prime Minister (Theresa May), the DUP (on which whose confidence and supply support the Government’s minority administration depends) vetoed this and subsequently a second paragraph (50) was inserted stressing that there would be no new controls on goods and services moving from Northern Ireland to Great Britain.
This second paragraph was not incorporated into the EU’s proposed text of the Withdrawal Agreement, as the European Union argued that it is exclusively an internal matter for the United Kingdom.

The negotiators returned to the backstop question in 2018.

Both the UK and the EU have prioritised avoidance of a ‘hard border’ as one of the three most important areas to resolve in order to reach a Withdrawal Agreement.

Early Parliamentary debates
Many Brexit-supporting Conservative and DUP MPs continued to oppose the backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely, although the DUP has said that it is open to time limiting the backstop. The EU side (in particular the Irish Government) sees a time-limited guarantee as without value, in particular, due to scepticism about any near-term delivery of ‘alternative arrangements’.

On 15 January 2019, the UK parliament rejected a government motion to approve its draft withdrawal agreement. In late January 2019, many Brexit-supporting Conservative and DUP MPs continued to oppose a backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely, although most of the Conservative rebels later voted for the Withdrawal Agreement and backstop without the DUP. This opposition was in spite of a LucidTalk opinion poll (released 6 December 2018) indicating that 65% of Northern Ireland voters were in favour of a Brexit that kept Northern Ireland in the EU single market and customs union.
On 28 January 2019, May expressed opposition to the backstop that she and the EU had agreed and urged Tory MPs to vote in favour of a backbench amendment replacing the backstop with unspecified “alternative arrangements”.

The Brady Amendment
On 29 January 2019, the House of Commons voted 317 to 301 to approve Sir Graham Brady’s Amendment to the Brexit Next Steps motion. which calls for “the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border, supports leaving the European Union with a deal and would, therefore, support the Withdrawal Agreement subject to this change.”

Following the vote, Michel Barnier said the backstop is “part and parcel” of the UK’s Brexit withdrawal agreement and will not be renegotiated.

Barnier said to France’s RTL radio: “Time is too short to find an alternative arrangement to the Irish backstop and Britain’s divorce deal with the European Union will not be re-opened for negotiation. We ourselves talked of so-called alternative arrangements which could prevent the return of a hard border. Only, no one, on either side, was able to say what arrangement would be needed to ensure controls on goods, animals and merchandise, without having a border. We have neither the time nor the technologies.”

Barnier said he hoped that UK Prime Minister Theresa May’s meeting with opposition Labour party leader Jeremy Corbyn might produce new ideas. He said the EU was prepared to re-write the Political Declaration which provides the outline for a future trade deal.

Attorney General’s Legal Opinion
A humble address was placed before the House of Commons on 13 November 2018, requiring the release of the legal advice given to the government regarding the proposed EU withdrawal agreement. The government’s response was presented to parliament by Attorney General Geoffrey Cox on 3 December. However, the following day, it was deemed by MPs to be incomplete, which led to a vote in which, for the first time in history, the Government of the United Kingdom was found to be in contempt of Parliament.

The full advice was later released showing that the terms of the backstop could mean that the UK could face “protracted and repeated rounds of negotiations”. In March 2019 further advice was published saying that the Vienna Convention on the Law of Treaties could be used if the backstop was shown to have a “socially destabilising effect on Northern Ireland”.

The Malthouse compromise
Kit Malthouse was credited as the convener of an agreement between limited factions of the Conservative party on Brexit on 29 January 2019.[25] The proposal comprised two parts. Plan A was to reopen the withdrawal agreement with the EU and renegotiate the backstop. Britain’s transition period would also be extended so there was more time to agree on the future relationship. Plan B was akin to a managed ‘no deal’.
The Malthouse compromise was seen as a supplement, by some Leavers, to the Graham Brady amendment: in a nutshell, it aimed to replace the backstop with a different one, which would either allow a smooth transition to a deal or put in place a triple safety net if there is no deal. EU negotiators saw the plan as unrealistic, and an example of the Conservative party negotiating with itself, with one EU official going so far as to call it “bonkers”. On 13 March 2019, the House of Commons voted down the Malthouse compromise by a margin of 374-164.

As of June 2019, these alternative arrangements remain to be identified. On 8 May 2019, the UK Conservative Party established a ‘panel of experts’ to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma.

The Johnson Government
In July 2019, Theresa May resigned and Boris Johnson became Prime Minister, with Boris Johnson saying that he wanted to replace the Irish backstop within the Withdrawal Agreement.
On 19 August, the Prime Minister wrote a strongly-worded letter to the President of the European Council, describing the agreement that he had previously voted for as “anti-democratic”, and not consistent with his interpretation of “sovereignty”.
Despite the backstop explicitly being agreed as a temporary measure, he continued to highlight that it was “inconsistent” with the UK’s desired final destination for its relationship with the EU. He also suggested that, despite Northern Ireland voting to remain in the EU, that this agreement would somehow undermine the Northern Ireland Peace process. Mr Tusk reminded Mr Johnson that those opposing the arrangement without “realistic alternatives” supported re-establishing a hard border on the island of Ireland.
This was the reality “even if they do not admit it”, he added. “The backstop is insurance to avoid a hard border on the island of Ireland unless and until an alternative is found”, Mr Tusk tweeted.


 

November 2018 agreement

On 14 November 2018, following a five-hour Cabinet meeting, Prime Minister May announced that her Cabinet approved a draft agreement with the EU. On the same day the government published Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, stating that negotiations on the future UK-EU were ongoing and that the Withdrawal Agreement would not be signed without an agreed Political Declaration on the future relationship “on the basis that nothing is agreed until everything is agreed”.

Legal effect
Article 2(2) of the protocol states that it is a temporary measure[38] while the United Kingdom identifies and develops a mutually satisfactory technology that operates customs, excise, phytosanitary and other controls on the frontier between the UK and the EU, without any evident border infrastructure.
The arrangements must be such as to comply with section 10 of the European Union (Withdrawal) Act 2018, on ‘Continuation of North-South co-operation and the prevention of new border arrangements’.

In April 2019, a report commissioned by the German Green Party concluded that the backstop could allow the UK to undermine EU environmental, consumer, and labour standards because it lacks sufficiently detailed controls.

Common customs territory proposal
Northern Ireland will per article 6(2) be bound by the entire EU Customs Code and shall be considered part of the EU customs territory per article 15(1). To reduce friction between Northern Ireland and the rest of the UK, article 6 of the Northern Ireland protocol proposes that (from the end of the transition phase on 31 December 2020), the UK and the EU customs territories will operate as one until the parties agree jointly that a mutually satisfactory alternative arrangement has been reached.
The single customs territory between the United Kingdom and the EU does not cover fish products: as a result fish from Great Britain to Northern Ireland would be subject to EU tariffs unless a separate agreement on fisheries is reached.

This alternative arrangement must be such as to continue to ensure that there is no evident border in Ireland. In addition, Northern Ireland will maintain “regulatory alignment” with the EU Single Market, again until a mutually satisfactory alternative arrangement can be put in place for Single Market regulations as well as Customs and Excise.

Ratification
In the ensuing months, the Parliament of the UK refused three times to ratify the agreement. In July 2019 Boris Johnson became Prime Minister of the United Kingdom and Leader of the Conservative Party. Johnson appointed Michael Gove to the Cabinet with the responsibility for the co-ordination of planning across Government Departments for a no-deal Brexit.
As of 4 August 2019, the Johnson ministry has not reopened negotiations on the withdrawal agreement and has declared that the backstop must be scrapped as a pre-condition to doing so, which the EU has declared that it will not do.


 

Reaction

The Irish government, in particular, is insisting on this backstop because they consider that an open border on the island of Ireland is an essential element of the Good Friday Agreement.
One Irish official said the impact it may have on the economy and people of the island could be “akin to a ‘blockade’ of the Northern economy”.

This protocol has been strongly opposed by the Democratic Unionist Party, who see it as weakening Northern Ireland’s place within the United Kingdom, and is regarded by a number of commentators as the main reason why the withdrawal agreement has not been ratified by the Parliament of the United Kingdom.
Since 2018, the DUP has said the Northern Ireland backstop must be removed from the Brexit withdrawal agreement if they are to continue to support Theresa May’s government in the House of Commons, although the party has said that it’s open to a time limit on the backstop.

The protocol is also opposed by the Ulster Unionist Party and the Traditional Unionist Voice.

Sinn Fein, the SDLP, the Alliance Party of Northern Ireland and the Green Party in Northern Ireland all support the backstop.

Some commentators say Britain is faced with a trilemma between three competing objectives: an open border on the island; no border in the North Channel; and no British participation in the European Single Market and the European Union Customs Union.


 

Alternative arrangements

A leaked memo by Industry Minister Richard Harrington, obtained by Sky News, said “This idea was considered and rejected by both the UK and the EU in summer 2018, as both parties concluded that it would not maintain an open border. That is why we ended up with the current backstop. There is currently no border in the world, outside a customs union, that has eliminated border infrastructure.”

On 8 May 2019, the UK Conservative Party established a panel of experts to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma. The panel includes proponents of the two ideas below. The only participant with an Irish connection is Graham Gudgin, a former adviser to Brexit supporter Lord Trimble.
On 6 July 2019, the panel proposed a number of arrangements that, it believed, should be acceptable. The Irish Government did not comment on the report since it was not a formal UK proposal but “it is understood [that] it believes [the report] to be fundamentally flawed and a misreading of what had already been agreed”.

Smart Border 2.0
Lars Karlsson, former director of the World Customs Organisation and deputy director-general of Swedish Customs, proposed how such a ‘Smart Border 2.0’ might operate.[63][64] As of June 2019, the proposal remains a theoretical one.

“Drive through border”
The information technology division of Fujitsu is reported as having pitched an artificial intelligence solution that would analyse social media posts. Fujitsu said that the report in The Sun was incorrect to claim that the technology involved automatic number plate recognition cameras on a restricted number of authorised border crossings.
A spokesperson for the Department for Exiting the EU said that “this proposal was not taken forward as it does not work for the unique circumstances of the Northern Ireland border”.

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