The Irish Border Backstop – why did the UK agree it?

There was a fascinating piece in the FT yesterday by Alex Barker and Arthur Beesley entitled “How the Irish border backstop became Brexit’s defining issue“. “The backstop: How a ‘meaningless’ clause now risks derailing Brexit” by Edward Malnick in The Telegraph deserves a read too writes Jon Worth.

But fascinating though those pieces are, neither directly answers the question about this that has been on my mind for weeks now: why did the UK side agree to the backstop in the first place, only to then seek to undermine it?

Was it done out of ignorance or misunderstanding? Or did the UK agree in good faith, and then change its mind? Or was the agreement for tactical purposes, simply to unblock negotiations, and the UK had no real intention of ever actually agreeing to a backstop?

Let’s start with the original compromise text agreed on 8th December 2017. PDF of the Joint Report here.

49. The United Kingdom remains committed to protecting North – South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU – UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, 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.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United

Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

In short: the future relationship should prevent there being a hard border in Ireland. If not, the UK will propose solutions to the problem. And failing that, “full alignment” with the rules of the internal market and customs union for North-South cooperation – the backstop (end of paragraph 49). Paragraph 50 is also interesting, proposing a role for the Northern Ireland Assembly.

But remember: the UK agreed to this text.

But then within three days David Davis was undermining it, saying it was not “a legally enforceable thing”. That is not how Barnier or Dublin saw it. It was however May, and not Davis, who had hammered out the text a few days earlier. Did Davis have a different interpretation to May (it would not have been the first time the UK Government were divided Brexit), or this was the intention of the UK side all along? Johnson claimed the text was “meaningless” as well.

But then by the time the detailed draft was released on 28th February 2018 (see page 101 of the PDF here), the backstop had become a “common regulatory area”. The Commission came down on Ireland’s side. The backstop was given legal form.

Since then the issue has been stuck. May has said she could never agree to the backstop this way. The DUP says it would cross their blood red lines. The UK side shows no sign of budging.

But on the other hand – not without reason – the EU side and the Irish government point to the December text, and that the UK agreed to a backstop.

How you interpret how we got to this stage also then offers some idea about how the issue could be solved.

If all of this were a matter of misunderstanding, there might yet be a way forward – perhaps to narrow the circumstances in which a backstop could be needed, or some greater reassurance that a future trade deal would mean there would be no need for a backstop.

If the UK government had had a change of heart between December 2017 and February 2018, then a good starting point would be to acknowledge this. Within the space of three months the UK side went from agreeing to the principle of a backstop to then point blank refusing it, but has at no point shown any contrition, or offered any explanation. “We agreed to a backstop, but we should not have done that – we need another way to avoid a border in Ireland” would go a long way, but words to that effect have not been forthcoming.

Or – worst of all – if all of this was just a cynical tactical play to unblock the negotiations back in December 2017 and the UK even then had no intention of actually doing what it agreed to, the way forward looks bleak. If the UK digs in and refuses any backstop, and having now invested 10 months of negotiation time with it as a central element of the EU position, it looks like No Deal is around the corner. Neither side will cede.

There would of course be ways out – a softer Brexit where the UK stays in the EU’s internal market and Customs Union would mean there would be no hard border in Ireland, and no backstop either. But that is miles away from Theresa May’s stated positions on all the other Brexit issues. But there are just 21 weeks of the Article 50 period to go – not much time for solutions if the whole backstop idea cannot be made to work.

Jon Worth is a renowned Blogger on EU affairs and German politics. This article was first published on his blog. More information can be found at www.jonworth.eu

Date posted: November 2018

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