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Henry Newman is Director of Open Europe.

The announcement yesterday that Angela Merkel will relinquish control the Christian Democrats, after nearly two decades, marks the start of her departure from German politics. Although she intends to stay as Chancellor for some time, her position is weakened. Distracted by domestic politics and looking ahead to difficult European elections next year, it seems (even more) unlikely that the Chancellor will seek to over-rule Michel Barnier’s team and force a political agreement on Brexit. Yet a political intervention is just what is needed to unblock the Northern Ireland backstop deadlock.

The backstop has become a seemingly impossible issue – described by Donald Tusk as  “Gordian knot”. Here’s a dozen reasons why the current mess needs a fresh look:

  1. The irony of the current impasse is that an insurance policy designed to prevent the Northern Ireland border hardening in the event of No Deal is now the main issue blocking a negotiated agreement – thus risking a No Deal and potentially a harder Irish border. The backstop risks triggering the very thing it is supposed to avoid.
  1. Throughout the negotiations, Brussels has said the UK cannot remain in part of the Single Market. Yet Brussels insists that the backstop requires that only part of the UK might have to stay in just part of the Single Market. Brussels is doing the very thing of which it accuses the UK: cherry-picking the four freedoms.
  1. The EU justifies this by pointing to Northern Ireland’s special circumstances and small size. But Northern Ireland’s population is bigger than Estonia, Cyprus, Luxembourg and Malta, and just a shade smaller than that of Latvia and Slovenia.
  1. The backstop was supposed to protect UK-Irish relations. Yet the deadlock threatens relations. Leo Varadkar has even provocatively floated the idea of a ban on British planes flying over Ireland in the event of a No Deal Brexit. Not to be outdone, David Davis suggested that the UK do the same.
  1. Both sides agreed to the concept of a backstop in a Joint Report of December 2017, but since then have failed to transform that political commitment into legal text. The EU insists the UK must agree a protocol without agreeing its overall future relationship with the EU. Yet Article 50 requires the Withdrawal Agreement to be agreed “taking account of the framework for its [the departing member’s] future relationship with the Union”. Anyway, it’s inconsistent for the EU to demand the UK agrees Northern Ireland’s future while also refusing to agree overall UK relations.
  1. The Joint Report noted in paragraph 49 that the UK will leave “the EU’s Internal [ie Single] Market and Customs Union” and in paragraph 50 that there would be “no new regulatory barriers between Northern Ireland and…the United Kingdom, unless…the Northern Ireland Executive and Assembly agree”. Now the EU seeks to claim these were just British commitments. But if the EU thought these commitments were unachievable, can they really claim to have signed the document in good faith?
  1. Back in December, it was clear the UK believed a backstop would be a last resort. In Paragraph 49, the UK stated its intention to avoid “a hard border” and to achieve this through the “overall EU-UK relationship” – ie the future partnership. This made sense, as at that time the EU agreed the UK had made “sufficient progress” to discuss its future, alongside its divorce. Yet, since then, Brussels has soft-pedalled on future discussions. They won’t even hold a scoping meeting on the future until after Brexit. So the EU signed off on a paragraph suggesting the backstop could be avoided by agreeing the future relationship, and since have stalled on future discussions.
  1. Paragraph 49 concludes that if the overall relationship or “specific solutions” don’t work, “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”. Contrary to what Brussels now maintains, this sentence does not say that the UK will ensure Northern Ireland alone remains in full alignment – it is phrased as a UK-wide commitment. Yet Brussels now demands that the backstop would mean only Northern Ireland aligning with the Single Market, and anything UK-wide requires separate agreement after Article 50. This cuts against  commitments in paragraph 45 to preserving the integrity of the UK internal market.
  1. The UK commitment to “full alignment” in paragraph 49 is explicitly not with all Single Market and Customs Union rules (hence the qualifier “those rules which” quoted above). At the time, UK ministers were told that this alignment could be achieved by outcome equivalence. For example, on 8 December, Michael Gove wrote in the Sunday Telegraph: “crucially, however, the UK Government has made clear that in those areas [of alignment] the UK continues to reserve the right to meet shared goals by our own means.” Either ministers were misled by British officials about what had been agreed, or Brussels led British officials to believe that outcome equivalence was possible but has since ruled it out.
  1. The backstop is designed to operate “in the absence of agreed solutions” – suggesting that it would fall away once an overall agreement was reached. But now the EU suggests that the backstop could apply in perpetuity as a sort of Sword of Damocles hanging over the UK. So if at any point the UK diverged from certain EU rules, Northern Ireland could be plucked back into the backstop. Anyway, if Article 50 can’t be used to determine the future relationship, how can the backstop apply in perpetuity?
  1. The premise of a Northern Ireland-only backstop is highly problematic in democratic terms, as senior figures in the Commission privately acknowledge. Northern Ireland would have to follow EU rules with no say over them at all: no MEPs, no Commissioner, no role in the Council of the EU. This seems highly problematic in terms of human rights, the consent required by the Belfast agreement, and perhaps even ECHR compliance. What would happen if, hypothetically, the Northern Ireland assembly refused to follow a future EU rule?
  1. Overall there are dozens of complex issues which will have to be addressed as the UK leaves the EU. But, as a former European Court Judge, Franklin Dehousse, notes: the EU has “enormously complicated the withdrawal negotiations” through its insistence on resolving the backstop. Avoiding a hard Irish border is important, as both sides have acknowledged. But so are dozens of other aspects of Brexit from enabling cooperation on internal security to prevent terror attacks, to finding a way to ensure there’s no disruption to aviation. All these are threatened by No Deal  -which now is most likely to be caused by an inability to agree the backstop.

Back in December both sides agreed a document which was ambiguous and in various ways contradictory. Rather than defining what they thought it meant, the UK Government stayed largely silent. In the meantime Brussels seems to have shifted the goal posts from an insurance policy to what some see as an “annexation” attempt. There’s still just about time to find a way through. But as it stands the EU’s version of the backstop is – as Damian Green has argued – worse than No Deal.

75 comments for: Henry Newman: A dozen reasons to unstop the backstop

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