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  • Writer's pictureDurham Pro Bono Blog

The Backstop: What is it, Why does it matter?

Updated: Feb 10, 2019



As the furore evident in the immediate aftermath of the 2016 ‘Brexit’ referendum result began to settle, a multitude of newspapers and political outlets alike initiated speculation over the United Kingdom’s future relationship with the European Union. Just two years on from that referendum result, an initial withdrawal agreement over the so called ‘divorce issues’ of the Irish Border, citizens rights and a multi-billion pound divorce bill has materialised while a ‘political declaration’ laying out a plan for a future relationship between the two parties has taken shape.


That future relationship, outlining how UK-EU trade will work in the future, detailing security issues and financial services arrangements, although heavily criticised by Labour Leader Jeremy Corbyn as ’26 pages of waffle’, [1] has not been at the centre of the political controversy. 1 Rather, it is the pivotal issue of the Northern Irish backstop which has the potential to throw the UK into crisis next week, when the Prime Minster’s Brexit package is widely expected to be resoundingly rejected by the House of Commons.


The backstop is essentially a position of last resort, to maintain an open border on the island of Ireland in the event that the UK leaves the EU without securing an all-encompassing deal. Currently, goods and services are traded between the two jurisdictions free of restrictions, as a result of the UK’s and ROI’s shared membership of the European Union’s single market and customs union. The UK’s desire to diverge and leave those arrangements sparked EU demands for such a backstop, to act as an option of last resort, in the event that the wider deal in the future relationship or other technological solutions could not solve the border conundrum.[2]


After months of negotiations, the UK-EU backstop impasse was broken on 14 November 2018, with an agreement that could see Northern Ireland remaining aligned to a plethora of EU single market regulations and the advent of a temporary customs territory keeping the entirety of the United Kingdom inside the EU’s custom union - until both parties agree the arrangement is redundant.


Despite significant business and agri-food groups in Northern Ireland urging the DUP to support the deal, the DUP appear to have taken little notice and have launched their own campaign to ‘bin the backstop’ in order to save ‘our precious union’.[3] If the backstop is kept, they warn, there will be a de-facto border down the Irish Sea and the possibility of Northern Ireland being trapped into a different regulatory and customs alignment to the rest of the United Kingdom. Closer to home, vast swathes of the Prime Minister’s backbench MP’s have warned that the backstop reduces the UK to a colony status, with the former Brexit Secretary David Davis describing the UK’s proposed predicament under the deal as one of a ‘rule-taker’.[4] Furthermore, the fact that the backstop is essentially a non-time limited mechanism that the UK cannot unilaterally exit has raised fresh concerns that the UK’s ability to strike free trade deals would be indefinitely hampered, an ability that has been widely regarded as one of the leave campaign’s core promises.


So with the deal widely expected to be voted down next week, what happens next? Essentially, its anyones guess. A 2nd referendum, a soft Norway-style brexit or a no-deal outcome are all possibilities. But with the EU unlikely to agree to any alternative that does not include the infamous backstop arrangement, the chaos that will undoubtedly ensue next week may have no clear end in sight.


Christy Conlon

Brexit Section Editor

6 January 2019


 

[1] CNN, ‘Brexit Deal condemned as ’26 pages of waffle’ (CNN, Nov 2018) < https://edition.cnn.com/2018/11/22/uk/uk-eu-brexit-future-relationship-gbr-intl/index.html>


[2] BBC, ‘The Irish border Brexit Backstop’ (BBC, Nov 2018) <https://www.bbc.co.uk/news/uknorthern-ireland-politics-44615404>


[3] ibid


[4] Sky News, ‘Davis: May’s deal would make UK a rule-taker’ (Sky, Nov 2018) <https://news.sky.com/video/davis-mays-deal-would-make-uk-a-rule-taker-11575415>



Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes above.

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