Henry Newman is Director of Open Europe.
While the Government’s new Brexit plan has caused plenty of recent dramas, it’s over the Irish backstop that the negotiations are really deadlocked. Brussels has made it clear that it doesn’t really like the new proposals. But the EU will likely avoid killing them off altogether. For now, the Commission is focused on locking down the details of our exit. And the Chequers statement and White Paper that followed are attempts to define the future partnership between Britain and the EU, not deal with the withdrawal itself. Above anything else, the Irish question has the potential to derail a smooth Brexit.
The Irish backstop is the main stumbling block to reaching agreement on our departure from the EU, which is otherwise 80 per cent secured. Once the withdrawal agreement is locked down, the transition will be unlocked, and the UK can head for the exit door in an orderly fashion. The UK side are pressing for a substantive political declaration for the ‘future framework’ to be agreed in parallel with the withdrawal text. But this could always be fudged with fluffy language to suit all sides.
So the pressure to find a way through on the Irish backstop is massively increasing. That’s partly why the EU has started turning up the pressure with all its no deal talk. But the Government needs to proceed cautiously to avoid totally boxing itself in for the future. And it must avoid a backstop which can be ‘triggered’ in the event of any UK regulatory divergence on goods or agriculture.
The principle of a backstop was jointly agreed by the UK and EU in December. It’s intended as a fail-safe insurance policy, which would come into effect in “the absence of agreed solutions” for the overall future relationship. The basic point is to keep the UK-Irish border open, whatever happens, and to protect the peace process.
Back in December the UK was determined to reach “sufficient progress” to move on to the second phase of the negotiations. The Government also wanted to get the EU to agree to the concept of a stand-still transition after the end of the Article 50 period. My understanding was that our team in Brussels understood their mandate as “transition at almost all costs”. They achieved this, but at a substantial price.
We got ‘across the line’ in December but the Joint Report, to which both teams of negotiators signed up, was basically a huge fudge on the UK/Ireland land border. It deferred the crunch point, but also boxed the UK in substantially. It was also broadly contradictory. It noted that the UK was leaving the Single Market and Customs Union, but committed to the “avoidance of a hard border, including any physical infrastructure or related checks and controls”. It promised “no new regulatory barriers” between Great Britain and Northern Ireland except with the agreement of the Northern Irish Executive and Assembly, but also claimed that these commitments would “not pre-determine the outcome of wider discussions on the future relationship” between the EU and UK.
After December, the UK should have published its understanding of how the backstop would operate. It didn’t, which meant that it became easy for others to interpret it to their advantage. Since then, the commitment to no hard border and no related checks has been widened to a commitment to an entirely frictionless border. But the actual commitment in the Joint Report was that in the “absence of agreed solutions” the UK would “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.”
As is clear from the text quoted immediately above, this was not a commitment to stay in the entire Single Market and Customs Union (as some, perhaps wilfully misunderstanding things, suggested at the time). In fact, a senior Commission source confirmed to me a few months back that the backstop was an example of “cherry picking”, precisely because it required alignment with only certain elements of the Single Market and the Customs Union – basically those relating to goods.
The EU argues that the backstop must apply only to Northern Ireland. It has strongly rejected the possibility of applying the backstop to the whole of the UK, saying that this would pre-determine the future relations between the UK and EU. Yet the UK has made it clear that it will not accept a customs border in the Irish Sea, and has rejected the idea of a distinct regulatory regime for Northern Ireland, separate from Great Britain. There are no easy answers.
Michel Barnier is now talking about de-dramatising the backstop, perhaps recognising the strength of feeling on the UK-side against having a customs and regulatory border imposed within our sovereign territory. But the problem is that the backstop has created an absurd situation.
At present the only real option, on the table from the EU side, for the future relationship between the UK and EU, is a free trade agreement for Great Britain, but with Northern Ireland under a separate customs and regulatory regime controlled by Brussels. The UK could not agree to this, and nor could it agree to a backstop which risked becoming a permanent limbo for Northern Ireland.
Around this time last year, Irish diplomats were promising that the Republic would be the “best friend” of the UK in the Brexit negotiations, just as soon as we had made ‘sufficient progress’ to move on to the second phase of the Article 50 discussions. We reached that point in December but there’s worrying little sign of that friendship. Instead the Irish Prime Minister seems to be almost deliberately ramping up tensions. See, for example, his recent ludicrous threat to stop UK planes flying over his territory.
The reality is that if we can’t find a way through on the backstop, then there’s a huge risk of a ‘no deal’ Brexit, which would be damaging to the UK and also extremely damaging to Ireland and to bilateral relations. Although there have been conflicting statements about this over recent days, it’s likely that the EU would then insist on a customs border being erected between Ireland and the UK. Both sides want to avoid this, and so they need to find a path through.