Brexit 'backstop' explained

This week: the Government delayed the meaningful vote on the Brexit deal in the House of Commons; there was a vote of confidence in the Prime Minister; and she is now in Brussels hoping to get further reassurances from the EU on the key issue of the Northern Ireland ‘backstop’.

European leaders have responded with exasperation – stating that the deal on offer represents the outcome of joint negotiations and that the UK must now accept it or reject it.  Further, the European Commission President, Jean-Claude Junker, wants to know explicitly what Theresa May would like to change with respect to the backstop: “we would like our UK friends to set out their expectations for us because this debate is sometimes nebulous and imprecise - and I would like clarifications."

What is the ‘backstop’?

A guarantee set out in a Protocol that whatever happens during the negotiations between the EU and UK on the future relationship, the open border between Ireland and Northern Ireland will be maintained, and the Good Friday Agreement respected.

Unionist parties - such as the DUP and UUP - reject the backstop claiming separate arrangements for Northern Ireland threaten the Union with Great Britain.

Other political parties in Northern Ireland (Sinn Fein, SDLP, Alliance and the Greens), welcome the backstop - seeing it as a necessary insurance policy that protects the Good Friday Agreement and prevents a hard border with Ireland.

170 pages - around a third of the 585 pages in the Withdrawal Agreement – are devoted to the ‘backstop’ – putting it into legal text.  If the backstop – should it be needed - doesn’t just cover Northern Ireland.  It means a UK-wide customs union with the EU - covering all goods (except for fish).

Under the backstop, the WHOLE of the UK will also be subject to ‘level playing field’ restrictions - principally the EU’s rules on state aid and competition law.  It contains commitments to not downgrade domestic policies in areas such as labour, social and environmental standards.

However, only Northern Ireland will be subject to EU regulations in areas such as VAT, agriculture, the environment, electricity markets and the EU’s Customs Code.

When would the backstop be needed?

Article 185 of the Withdrawal Agreement states that the Protocol “shall apply as from the end of the transition period”.  It triggers automatically on 31 December 2020 if the UK and EU have not reached Agreement on the future relationship.

Both sides have committed in the Withdrawal Agreement to: “use their best endeavours” to conclude an agreement that supersedes the backstop before the end of the transition period.

Exiting the backstop

The backstop conditions apply: “unless and until they are superseded, in whole or in part, by a subsequent agreement”.  A ‘Joint Committee’ made up of representatives of both the EU and the UK - must consider if they believe the backstop, in whole or in part, is no longer necessary. The decision on whether the backstop is still required must be made by mutual consent - there is no unilateral exit from the backstop.

Other specific solutions

However, as the UK and the EU agreed in the December 2017 ‘Joint Report,’ the UK could still try and come up with other solutions that would ensure checks are not needed at the border.

One of these solutions might be technological – although experts are sceptical about the extent to which technology is the ‘answer’ to the border problem.

The Attorney General fears that if talks do break down, there may be no exit from the backstop.

EU Press release dated 13 December 2018

  1. The European Council reconfirms its conclusions of 25 November 2018, in which it endorsed the Withdrawal Agreement and approved the Political Declaration. The Union stands by this agreement and intends to proceed with its ratification. It is not open for renegotiation.

  2. The European Council reiterates that it wishes to establish as close as possible a partnership with the United Kingdom in the future. It stands ready to embark on preparations immediately after signature of the Withdrawal Agreement to ensure that negotiations can start as soon as possible after the UK’s withdrawal.

  3. The European Council underlines that the backstop is intended as an insurance policy to prevent a hard border on the island of Ireland and ensure the integrity of the Single Market.  It is the Union’s firm determination to work speedily on a subsequent agreement that establishes by 31 December 2020 alternative arrangements, so that the backstop will not need to be triggered.

  4. The European Council also underlines that, if the backstop were nevertheless to be triggered, it would apply temporarily, unless and until it is superseded by a subsequent agreement that ensures that a hard border is avoided. In such a case, the Union would use its best endeavours to negotiate and conclude expeditiously a subsequent agreement that would replace the backstop, and would expect the same of the United Kingdom, so that the backstop would only be in place for as long as strictly necessary.

  5. The European Council calls for work on preparedness at all levels for the consequences of the United Kingdom’s withdrawal to be intensified, taking into account all possible outcomes.

John ShuttleworthComment