The backstop is an arrangement for the Irish border that will come into effect if no other solutions to maintain the current open border can be agreed. It is intended to protect the Good Friday Agreement/Belfast Agreement by ensuring that there is no ‘hardening’ of the border between Northern Ireland and Ireland as a result of Brexit. Both the UK and EU agree on the need for a backstop.
The UK’s decision to leave the EU Single Market and Customs Union means that it will become a ‘third country’ to the EU. If no special arrangements are found for the Irish border, the EU will impose the standard checks it has at its border with any third country. These would include both customs checks (documenting what the product is and providing proof of where the good originates, as well as ensuring any tariffs are collected) and regulatory checks, to verify that goods comply with the EU’s standards. The UK may decide not to impose checks on its side of the border – but risks being challenged in the World Trade Organization (WTO) by other countries who think this is providing more favourable treatment to goods crossing the Northern Irish land border compared to those entering via other ports.
The EU guidelines for the first phase of negotiations on UK withdrawal identified the "unique circumstances on the island of Ireland". The guidelines also stated that avoiding a hard border was one of three key issues that needed to achieve ‘sufficient progress’ in phase one of negotiations, along with the financial settlement and citizens’ rights, to allow talks to begin on the framework for the future relationship between the UK and the EU.
The UK initially argued that the border could only be fully solved through the future UK-EU relationship. However, the EU, particularly the Irish Government wanted legally binding commitments to avoiding a hard border to be included in the Withdrawal Agreement setting out the terms of the UK’s exit from the EU.
In Autumn 2017, in the run up to the critical December European Council, the question of the Irish border became critical to the prospect of successfully achieving ‘sufficient progress’. The two sides were forced to reach an agreement and bridge the gap between their two positions.
What was agreed in the December 2017 Joint Report?
In December 2017, the two parties agreed in a ‘Joint Report’ that to avoid a hard border, there are three possible solutions:
- to achieve this objective through the overall EU-UK relationship (which is the UK’s preferred option)
- should this not be possible, the UK will propose specific solutions (i.e. the UK will propose a special arrangement for Northern Ireland)
- in the absence of agreed solutions, the UK will maintain full alignment with the rules of the Internal Market and the Customs Union which, now or in the future, should support North-South co-operation, the all-island economy and the protection of the 1998 Agreement.
Through this agreement, the UK effectively conceded that a legally watertight solution to the border question had to be included in the Withdrawal Agreement, rather than postponed to the future relationship negotiations. This form of words allowed both sides to recommend that the requisite ‘sufficient progress’ had been made for further talks to take place, on the framework for the future UK-EU relationship. The European Council, including the Taoiseach (the Irish Prime Minister) duly signed this off in December 2017.
What happened after the Joint Report?
While the two sides agreed on the wording of the Joint Report, there was a lack of agreement on what the proposed solutions meant in practice. The focus of discussions on the border shifted to the third proposal, which became known as 'the backstop'.
In February 2018, the European Commission published a draft Withdrawal Agreement which, to deliver the backstop, proposed keeping Northern Ireland within the EU customs territory and ‘common regulatory area’ covering goods and sanitary and phytosanitary regulations. This approach, a ‘Northern Ireland specific’ backstop, would require customs and regulatory checks between Great Britain and Northern Ireland if it ever came into force.
The Prime Minister said “no UK Prime Minister could ever agree to” this proposal because it would threaten the “constitutional integrity of the UK”. The UK’s preferred approach was for any backstop to apply to the whole of the UK, not just Northern Ireland, to prevent the need for checks to take place on goods moving from one part of the UK to another.
In summer 2018, the UK Government published proposals for a temporary UK-wide customs union with the EU and, as part of its suggestions for the future relationship, a ‘common rulebook’ on goods regulations. Effectively the UK argued that the backstop was unnecessary as the future relationship would ensure there was no need for a hard border. However, the EU rejected the time-limited proposal and the idea of a UK-wide backstop, as it would prejudge the outcome of detailed future relationship negotiations.
Over summer 2018 discussions continued on the backstop, with Michel Barnier attempting to 'de-dramatise' the issue by making clear that the EU’s proposal would require ‘only technical controls on goods’. The EU also sought to limit the categories of goods facing checks, building on existing animal health checks that take place between the two islands, rather than creating lots of new checks.
But there was no concrete progress. The EU’s priorities were reasserted at the Salzburg summit in September 2018, when European Council President Donald Tusk said “there will be no Withdrawal Agreement without a solid, operational and legally binding Irish backstop”.
Following the Salzburg summit, the Prime Minister said that the UK would ‘set out our alternative’ proposal for the backstop. The detail of this proposal has not been published but negotiations have continued.
The outstanding issues include the scope of the backstop arrangement: will it apply just to Northern Ireland or to the whole UK? The UK proposal is expected to involve a UK-wide approach to customs but with a Northern Ireland specific agreement on regulatory aspects. Reports suggest that the EU is willing to accept a UK-wide customs arrangement, if there is a ‘backstop to the backstop’, which mirrors its original proposal of Northern Ireland remaining in the Customs Union. This, of course, would have the same effect as the original backstop proposal of establishing customs checks between the UK and Northern Ireland. The Prime Minister again ruled this out in the House of Commons in October 2018.
There are also questions about any time limit on the backstop. The Irish Government and EU are clear that it cannot be time limited; Brexiteers in the UK fear that the country will be kept indefinitely in a customs union.
The Government also has to balance the views of the Democratic Unionist Party, whose votes it relies on for its majority in the House of Commons, and who have said they do not want any checks, of any nature, on goods crossing from Northern Ireland to Great Britain or vice versa. As well as customs checks, which a Northern Ireland-only backstop would require, they are therefore also opposed to the EU’s proposal for health and phytosanitary checks to be carried out on 100% of Northern Irish animal product imports from Great Britain, rather than the current 10%.
What happens next?
The two sides are still hoping to reach agreement on the backstop, the key outstanding issue in the withdrawal negotiations. This was not achieved at the European Council in October 2018; a special Council may be held in November or the issue may even be pushed to the next scheduled Council, in December 2018. With no agreement on the backstop, there will be no Withdrawal Agreement and the UK will leave the EU in March 2019 with no deal.
Timeline of negotiations on the backstop
- March 2017: PM triggers Article 50, beginning the countdown to Brexit
- April 2017: European Council issues its first guidelines for Brexit negotiations, which establish the ‘aim of avoiding a hard border’
- June – December 2017: Phase One negotiations, including discussions on the Irish border
- December 2017: Joint UK-EU Report published on Phase One of negotiations, establishing idea of a backstop that will be used ‘in the absence of agreed solutions’ to avoid a hard border and that must be included in the Withdrawal Agreement
- February 2018: EU publishes draft Withdrawal Agreement, suggesting that if no other solutions are found, Northern Ireland would remain ‘part of the customs territory’ of the EU
- February 2018: Theresa May says ‘no UK Prime Minister could ever agree’ to the EU’s proposals
- June 2018: UK publishes proposal for ‘temporary customs arrangement’ to apply to the whole UK in the event of no other solution being found, avoiding the need for customs checks between UK and EU
- July 2018: UK publishes ‘Chequers’ White Paper, which proposes ‘common rulebook’ on goods to avoid regulatory checks at borders
- September 2018: Salzburg summit – EU confirms that ‘while there are positive elements in the Chequers proposal, the suggested framework for economic cooperation will not work’ and that ‘a solid, operational and legally binding Irish backstop’ is still necessary
- September 2018: Theresa May says the UK will ‘set out our alternative’ solution to the backstop
- October 2018: European Council