Giant's Causeway

The Backstop is Gone. Welcome to the Backstop.

Published: 18 October 2019

Michael Keating evaluates Boris Johnson's replacement for the backstop - a new version of the backstop.

The key issue in the last few months of Brexit negotiations has been the Irish border. In essence, with the United Kingdom outside the EU and the Republic of Ireland inside, there would be a hard border between the two parts of Ireland. Nobody wanted this, as it could undermine the Northern Ireland peace process, of which an open border was a key part.

There are two parts to the border issue: the EU single market, which avoids different regulations on products; and the customs union, which avoids tariffs on trade in goods. Theresa May’s deal would have kept Northern Ireland largely within the EU system of regulation. This would eliminate checks at the Irish border but put in checks between Northern Ireland and Great Britain, the so-called ‘border in the Irish sea’. The EU would also have accepted that Northern Ireland remain in the customs union but this was unacceptable to Northern Ireland unionists. So the whole of the UK was to remain in the customs union, which was unacceptable to hard Brexiters in Parliament. These provisions, known as the Irish backstop, could be superseded by a future overall trading agreement between the EU and the UK. The Political Statement on the Future Relationship suggested that this might be close enough to dispense with the backstop.

The new deal is largely the same but with some critical differences. Northern Ireland will remain aligned with the EU regulations on products, while also, as far as possible, meeting British standards.

Northern Ireland alone will be part of the EU customs arrangements while remaining within the UK customs union.

If this looks complicated, that is because it is. There are complex rules about what happens to goods originating in, or passing through, Northern Ireland, depending on their final destination. Duties will be imposed or rebated accordingly. There are equally complex provisions about ensuring conformity with product standards and on inspections. Much of the detail is fudged or to be worked out in future negotiations in a joint committee. On regulatory alignment the agreement states that,  ‘the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof.’

One big objection to the May deal was that it was not time-limited. This one is not either, but there is a provision for the Northern Ireland Assembly to opt out of the special arrangements after four years by simple majority. It can then decide again every four years, unless there is a cross-community majority to remain in them, in which case it is eight years. The provision seems moot while the Stormont Assembly remains out of action, as it has for almost three years. Although the provision is a concession to the DUP, any newly elected Assembly is likely to have a strong pro-EU majority, undermining the current DUP position as the sole Northern Ireland party at Westminster.

Although not time-limited, Theresa May’s backstop was presented as temporary, to be superseded by a comprehensive new EU-UK trade agreement. That looked difficult at the time. This new Irish arrangement is not billed as temporary and could be even more difficult to supersede. The Johnson Government has hardened its vision of Brexit and now envisages a looser trade deal, without the close regulatory and customs arrangements that were envisaged last time. The Political Declaration on the Future Relationship has been watered down accordingly.

Otherwise, this is a new version of the backstop and represents a significant retreat by the new UK Government. Limiting the customs union to Northern Ireland is a concession not to the UK, but by the UK. Like the previous deal, this one does not eliminate the two borders – on the island of Ireland and the Irish Sea - but makes them a lot more complicated.

Michael Keating is Professor of Politics at the University of Aberdeen and Director of the Centre on Constitutional Change.

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