3 January 2019

The really worrying thing about the Irish backstop

By Martin Davison

Opposition to Theresa May’s deal with the European Union, other than that emanating from obdurate Remainers and Labour Party fantasists, has generally coalesced around the Irish backstop. But this article sets out to show that the Brexiteers’ focus on the backstop is shortsighted. It is in fact the least of their problems, since many features of the backstop are bound to endure even after it has been superseded by an agreement for a permanent future relationship between the UK and the EU.

The terms of the backstop are set out in a Protocol, which forms part of the Withdrawal Agreement under Article 50 TEU. The Prime Minister points out that the parties are explicit that this legal agreement does not, indeed cannot under EU law, establish the permanent future relationship. The framework for this is adumbrated in a separate, legally non-binding Political Declaration. But May has had to accept the political reality that the agreement she reached with the EU last November provides nowhere near enough reassurance for those unhappy with the backstop. She therefore deferred the ‘meaningful’ parliamentary vote on her deal and is currently pleading with the EU for more persuasive comfort on the backstop.

However, as matters stand, the Protocol governing the backstop simply states that its provisions are intended to apply only temporarily, “unless and until they are superseded, in whole or in part, by a subsequent agreement.” The ambitious intention expressed in the document is that, using their best endeavours, the parties should conclude that agreement by 31 December 2020. But what might that subsequent agreement look like? There are, of course, pointers in the Political Declaration but, as a first step, one needs to turn to one of the recitals in the preamble to the Protocol:

“RECALLING the Union’s and the United Kingdom’s intention to replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing”

In principle, therefore, as soon as the parties are ready to implement a future relationship agreement that permanently avoids a hard border on the island of Ireland, the Protocol will be superseded and the despised backstop consigned to history. There is, however, a further recital to the Protocol, which seems to place additional constraints on the future arrangements:

“RECALLING the commitment of the United Kingdom to protect North-South cooperation and its guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls, and bearing in mind that any future arrangements must be compatible with these overarching requirements”

So, we now have ‘overarching requirements’ for the future relationship which will replace the backstop solution and, as well as expatiating on the hard border, they ostensibly include something quite distinct from that thorny issue. The relevant agreement also has to reflect the UK’s commitment to protect North-South cooperation.

Before considering the implications of committing to protect North-South cooperation, we should note that there is in fact another way of bringing an end to the backstop. Either party can trigger a review process (Article 20), if it believes that matters have changed such that the backstop arrangements are no longer necessary for the achievement of the Protocol’s stated objectives. These objectives actually go beyond the two ‘overarching requirements’ of a future agreement: no hard border and the continuance of North-South cooperation. The four objectives that need to be achieved for the review process to lead to the termination of the backstop are:

  1. To address the unique circumstances on the island of Ireland
  2. To maintain the necessary conditions for continued North-South cooperation
  3. To avoid a hard border
  4. To protect the 1998 Agreement in all its dimensions

In spite of this, when the UK Attorney General analysed the review mechanism in his important document titled “EU Exit: Legal Position on the Withdrawal Agreement”, he made this observation with regard to the conditions that need to be satisfied:

The conditions in Article 1(3), as described above, are that the Protocol is necessary “to address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions”. These conditions would be met if the parties had established alternative arrangements for ensuring the absence of a hard border.

The Attorney General does not explain how he reached the conclusion expressed in that unequivocal final sentence. In fact it appears to be quite unjustified. Simply avoiding the return to a hard border between Ireland and Northern Ireland, not that it would be likely to be at all simple in practice, would be insufficient to bring the backstop regime to an end through the review process. All four objectives would need to be achieved.

Of course, the Attorney General also addresses the question as to how the Protocol will be superseded by a future agreement rather than a review and here again he implies that, for this to happen, all that is required is the avoidance of a hard border:

“The main provisions of the Protocol come into force from the end of the implementation period (31 December 2020 – see Article 185 of the Agreement) in the event that a subsequent agreement is not in place by then, and the Protocol will continue to apply unless and until it is superseded, in whole in or part, by a subsequent agreement establishing alternative arrangements (Article 1(4), and the fifth recital in the preamble).”

Article 1(4) simply refers to the superseding agreement, while the fifth recital is the one that specifies that the agreement must establish alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing. It is unclear why the Attorney General makes no reference to the requirement that the superseding agreement must also be compatible with the UK’s commitment to protect North-South cooperation.

Let us assume that the parties eventually come up with alternative arrangements for avoiding a hard border. Such arrangements might well include the ‘facilitative arrangements and technologies’ for customs envisaged in the Political Declaration. But what reason is there to believe that these would also, to the satisfaction of all parties, maintain the necessary conditions for continued North-South cooperation? If that were to be a stumbling-block, the backstop would not be brought to an end. Would it not also be quite plausible for the EU, if it suited their purposes, to argue that such arrangements fail to protect the 1998 Agreement in all its dimensions, a very vague phrase, thus frustrating a review instigated by the UK? In that case the UK could not succeed in terminating the backstop through a review.

Clearly all this is highly relevant to the ongoing parliamentary consideration of the Withdrawal Agreement. Serious concern has been expressed by Tory backbenchers and others that, even if it is intended to be temporary, the backstop might in practice be never-ending – particularly as the UK is in no circumstances empowered to end it unilaterally. The DUP, of course, still seems to consider that even a short-lived backstop would be unconscionable.

However, the real implications are rather more significant and have been masked by the row over the backstop. In essence, the UK has concluded agreements under which any permanent future relationship with the EU will in fact be bound to replicate most of the arrangements set out in the Protocol, i.e. much of the backstop regime. If the future relationship does not replicate those arrangements, the Protocol will not be superseded and the backstop will simply continue to apply. Those who dismiss the blueprint in the Political Declaration as non-binding and imagine that post-Brexit negotiation of e.g. a Canada-style FTA with added facilitative arrangements and technologies will do the trick are deluding themselves. Why is this?

Back in late 2017, after the UK had published its Position Paper on Northern Ireland and Ireland and the European Commission its Guiding Principles for the Dialogue on Ireland/Northern Ireland, a joint North-South cooperation mapping exercise was carried out. Its purpose, as stated in DexEU’s recently, and very belatedly, published Technical Explanatory Note on the subject, was “to chart the range of formal and informal cooperation that currently exists between Northern Ireland and Ireland, noting the role of EU regulatory frameworks, where applicable, in its operation and development, with a view to maintaining North-South cooperation following the UK’s withdrawal from the EU.”

The Technical Explanatory Note acknowledges the UK’s commitment to North-South cooperation given in the December 2017 Joint Report and reminds readers that that report had also stated that “the two Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European Union legal and policy framework.” Whether that is a fair and reasonable summary of the outcome of the mapping exercise is somewhat academic; what matters is that it was the form of wording agreed between the EU and the UK for the purposes of their Joint Report.

The crucial importance of this is that the identical ‘significant extent’ wording duly reappears as another recital in the preamble to the Irish Protocol. In these circumstances, how exactly could any agreement for a future relationship that did not provide ‘a common EU legal and policy framework’ north and south of the border be said to maintain the necessary conditions for continued North-South cooperation? After all, if the desired cooperation were to lose the very framework on which it purportedly relies to a significant extent, the necessary conditions for its continuance could hardly be said to have been maintained. It must surely follow that, whatever future relationship between the UK and the EU eventually emerges, it will have to provide a common EU legal and policy framework north and south of the Irish border. If it does not, there is no escape from the backstop regime. One is bound to detect certain similarities to Catch 22.

The European Commission itself comments on North-South cooperation in a fact sheet on the Protocol but, interestingly, makes no reference at all to the ‘significant extent’ conclusion drawn from the joint mapping exercise and recited in the Protocol preamble. It limits itself to observing that North-South cooperation is an essential element of the Good Friday Agreement, provides some examples and then concludes with this paragraph: “Both parties have recognised that the UK’s departure from the EU gives rise to substantial challenges to the maintenance and development of North-South Cooperation. In this context, the avoidance of a hard border on the island of Ireland, as provided for in other Articles of this Protocol, is an essential precondition to protecting North-South Cooperation.”

It is a moot point whether the UK should take any comfort from this. The avoidance of a hard border and the protection of North-South cooperation are admittedly linked but satisfying an essential precondition is only a starting point. Moreover, there is reason to suspect that the EU and Ireland will consider any new checks and controls relating to the land border, if they are carried out anywhere on the island of Ireland, to be a hindrance to North-South cooperation and an offence against the 1998 Agreement. As to the omission, one can only speculate why the Commission chose to quote verbatim a Protocol recital in its remarks about the substantial challenges to North-South cooperation posed by Brexit, while passing over the immediately preceding recital, that which recalls that North-South cooperation relies to a significant extent on a common European Union legal and policy framework.

All this places Leavers firmly and uncomfortably on the horns of a dilemma. Do they accept the Prime Minister’s deal, replete with Irish trap set and ready to spring, in a final desperate attempt to frustrate the resurgent Remainers, fulfil the Referendum instruction and exit the EU in an orderly manner, however unsatisfactory the destination? Or do they reject the frankly rather absurd destination dictated by the agreements the Prime Minister has been lured into, challenge the Remainers to do their worst and try to conduct the UK over the Brexit line and into the unknown? The answer is likely to emerge very soon.

Martin Davison is a retired tax consultant, who now studies independently and writes on a wide variety of issues.