8 November 2018

Backstop to the future

By David Shiels

It is crunch time for the backstop. Over the next few weeks, the issue that has dominated the last few months of the Brexit negotiations will finally have to be resolved and the UK will face a choice about whether to proceed with a deal or take the plunge and opt for No Deal.

If the Government or Parliament chooses the latter option, it will be because the terms of the backstop are unacceptable – and the provision that was designed to prevent a hard border in Ireland will have become the cause of even more uncertainty for Northern Ireland and the Republic.

Is there a way ahead? Open Europe’s new report, Resetting the Backstop, explores the current impasse and identifies some of the key questions that the Government and MPs should consider before signing up to the backstop.

First of all, it is important to be clear that there are in fact two backstops, or at least two interpretations of the backstop, which have been put forward by the two sides in the negotiations. The EU’s original backstop proposal, contained in February’s draft Withdrawal Agreement, was specific to Northern Ireland and stated that the province would remain within the EU’s customs territory and regulatory regime for goods. The UK, finding this proposal unacceptable, sees the backstop differently, believing that its provisions should apply to the whole of the UK and that it should be a temporary arrangement.

There are signs that the EU is now moving towards the UK’s position and that they are prepared to agree to an all-UK customs arrangement, but there is still pressure for the backstop to contain bolt-ons for Northern Ireland or even a “backstop to the backstop” – a de-dramatised version of the February backstop, which would lie underneath the “temporary” all-UK backstop.

Both concepts of the backstop have problems.

The EU’s idea of a Northern Ireland-only backstop is problematic for the UK, not least because it is provocative to Unionists in Northern Ireland and has implications for the existing devolutionary settlement in the UK. The possibility that Northern Ireland could under certain scenarios end up in a different customs territory from Great Britain is deeply troubling to Unionists, just as Brexit itself is troubling to Irish Nationalists.

The proposal creates problems without necessarily solving anything. There is also considerable confusion about the purpose of the backstop and the circumstances in which it would be invoked. The EU and Ireland say it is only an insurance policy that would never have to be used, but also go on to say that the EU is offering Northern Ireland the best of both worlds, an attractive compromise that would have advantages for businesses in Northern Ireland.

There is a contradiction here and it is clear that the circumstances in which a Northern Ireland-only backstop would come into play – if the EU and UK failed to secure an agreement or diverged in the future – would be far from ideal for Northern Ireland. This backstop would be an imposed solution, and one that the Westminster Parliament would be legally bound to implement, possibly overriding the Northern Ireland Assembly. There is a case for arguing that Northern Ireland deserves a tailored solution designed to protect its special circumstances, but this is not what the EU’s backstop actually offers.

Meanwhile, the UK’s alternative idea of an all-UK customs backstop is problematic, both domestically and from the point of view of the EU. Brexiteers argue that the UK continuing in a customs relationship with the EU after the transition phase does not really deliver Brexit as it delays the possibility of the UK pursuing an independent trade policy. Therefore the Government argues that the all-UK backstop cannot be a permanent arrangement. But for Ireland, a backstop that is time-limited or that can be ended by anything but the future relationship is not really a backstop at all.

In an effort to bridge the gap between these positions, the negotiators are working on the idea of an all-UK backstop containing an exit route for the UK, albeit one based on an arbitration mechanism rather than one that could be triggered unilaterally by the British Government. From the UK’s point of view, this option seems more attractive than any of the previous proposals and possibly one that the Government could sell as an acceptable compromise. There are, however, important issues that must be resolved. Unless the Government is clear about what has been agreed, the backstop issue could return to haunt negotiators in the next phase.

As the Cabinet prepares to meet for the second time this week, there is pressure on the Government to publish the full legal advice on the backstop, or at least make it available to Ministers and opposition parties. Whether this happens or not, there are some important questions that Ministers should consider before bringing the Withdrawal Agreement before Parliament – and MPs should also bear them in mind if and when they are asked to give their support to a deal.

First, it is important to consider whether the Agreement contains special provisions for Northern Ireland, either in the form of bolt-ons or a “backstop to the backstop”. Is there a role for the Northern Ireland Assembly in implementing future regulations in Northern Ireland and does it leave open the possibility of future convergence with Great Britain? If the answer to this is no, then the backstop fails an important democratic test. Another consideration is whether the backstop imposes unreasonable demands on the UK as a price for making the sovereign decision to trigger Article 50 and leave the EU. If the EU agrees to a UK-wide customs union, what will be expected of the UK in terms of a dynamic commitment to follow EU level playing field rules on employment, environmental and social policy?

Most importantly, it is important for the Government to be clear about the exit mechanism and the terms under which the UK could leave the backstop. Does it apply to the whole of the UK, including Northern Ireland, so that the four nations can leave the backstop together as one? This is the key test for any backstop and one that should be put ahead of any party political considerations for MPs as they decide how to vote.

There is no doubt that, if an agreement is reached, there will be strong momentum towards ratification, as MPs face pressure to vote for a deal, rather than opening up the option of a No Deal Brexit. For those concerned about political stability in Northern Ireland and the future of UK-Ireland relations, there will be a strong incentive to avoid the latter outcome. As the UK has said all along, it is only in the context of the future relationship that the border issue can be resolved. For now, it seems that the Government is holding out against the most objectionable aspects of the EU’s backstop proposals. It is not possible to get rid of the backstop completely, since the UK has made a commitment to include this. But the Government and Parliament should proceed with the utmost care.

David Shiels is a Policy Analyst at Open Europe.