After a late night dash to Strasbourg on March 11, the British prime minister, Theresa May, said she had agreed “legally binding” changes to the Brexit withdrawal agreement with the European Union. Designed to avoid the UK being kept indefinitely within the so-called Irish backstop, such changes were deemed key in order for MPs to agree to the Brexit deal in parliament. But the deal was still defeated on March 12 by 149 votes. Why was the Irish backstop such a sticking point?
Q: The attorney general’s advice states that the new legally binding provisions “reduce the risk” of the UK being stuck in the Irish backstop indefinitely. What is the backstop and why is there so much opposition to it?
There is a certain irony in the focus being on the UK getting out of the backstop rather than on avoiding falling into it in the first place. For the backstop is not the intended “landing point” for the UK after Brexit – as the documentation produced by the UK and EU late on March 11 reiterates. Instead, it is a safety net for Northern Ireland to fall into if the UK and EU fail to negotiate a future trade agreement that avoids a hard border by the end of the Brexit transition period.
In order for it to be fit for purpose, the arrangements for this safety net have had to be clearly spelled out before Brexit day. And because its function is primarily to avoid a hard border, the backstop is centred on Northern Ireland rather than the whole of the UK. This has produced a distorted picture of an unlikely-but-potential future relationship in which Northern Ireland remains much more closely tied to the EU than the rest of the UK.
The Democratic Unionist Party and other unionist parties in Northern Ireland have been vocally critical of the backstop as a result, worried that if the UK ended up in this position – be it by accident or design – it would lead to growing divergence within the UK. In a political atmosphere of heightened tension and dysfunction, particularly in the absence of devolved government in Northern Ireland, such concerns are particularly acute and not easily soothed.
Q: If the UK did decide to unilaterally withdraw from the backstop arrangement, what would happen on the Irish border?
It’s worth noting that there are actually two aspects to the “backstop” set out in the protocol on Ireland/Northern Ireland in the withdrawal agreement. They relate to two aspects of keeping the Irish border “frictionless”: avoiding the need for customs controls and enabling the free movement of goods.
Customs controls come into play at entry points into a territory. If they don’t apply at the land border, they will be in force at other entry points to Northern Ireland, such as the sea and airports. This in effect would mean customs controls between Northern Ireland and the rest of the UK.
The first part of the backstop avoids this by including the whole of the UK in a single customs territory with the EU. If the UK was to withdraw from this part of the backstop, it would mean customs controls on the Irish border – so all goods having to be declared, cleared for entry and tariffs or quotas paid as they cross the border. Given that 177,000 lorries and 208,000 vans cross the border each month, customs controls would be difficult to enforce and costly to comply with. Many Northern Ireland businesses fear that they simply could not survive such barriers to cross-border trade.
The second part of the backstop is already specific to Northern Ireland. It means Northern Ireland would remain in regulatory alignment with the EU in specified areas of EU legislation (about 20% of it relating to goods) to avoid friction or controls on the movement of goods across the Irish border. The assurances Theresa May secured in Strasbourg on March 11 confirm what was already in the protocol of the withdrawal agreement: that Northern Ireland will not be automatically compelled to adopt new EU legislation in the future.
That said, if Northern Ireland producers and businesses were increasingly out of line with EU rules, it’s likely that they would face barriers on the movement of their goods into Ireland and the wider single market.
The majority of political parties in Northern Ireland support the backstop, and business and civic leaders have urged MPs to accept it. This is because they see the backstop as showing a rare degree of flexibility from the EU in order to minimise friction and barriers to the movement of goods across the Irish sea and land borders.
Q: Would this put the 1998 Good Friday/Belfast Agreement at risk?
Protecting the 1998 agreement is a primary objective of the Brexit withdrawal agreement. Provisions within the Northern Ireland protocol relating to avoiding a hard border, maintaining cross-border co-operation and protecting human rights in Northern Ireland all relate back to this point. The co-operation across the Irish border associated with the peace process, as well as EU integration, has brought tangible benefits to communities in the border region most negatively affected by the legacy of conflict and economic underdevelopment.
The risks posed to the peace process are much more complex than dissident Irish republicans who want a united Ireland seeing border guards or any physical border infrastructure as targets for terrorist violence, as they did in the past. And so minimising such risks to peace is also much more complex than avoiding border checks and controls. It requires trust and co-operation between the British and Irish governments, between north and south on the island, and between unionist and nationalist and others in Northern Ireland.
In order to best secure future peace and stability in Northern Ireland, therefore, the sensationalist headlines and polarised narratives about the Brexit backstop must be cast aside.