‘A time limit is not enough’, Boris Johnson proclaimed in his first statement to the House of Commons chamber on Jul 25th, reasserting a claim made frequently during the leadership campaign; the only way a deal can be reached is through ‘the abolition of the backstop’. This is by no means surprising, considering the fact that since the publication of the Withdrawal Agreement in November, the backstop has come under constant attack by Brexiteers and has become the key issue preventing the passage of a deal through the Commons.
By contrast, May’s government typically failed to explain the reasoning behind the backstop or sell it to the public, presenting it as a problem they would try to mitigate, rather than the necessary, balanced compromise it is. Whilst critics condemn the backstop as a threat to sovereignty and an attempt to trap the UK in a customs union indefinitely, it is in fact one of very few realistic options to prevent a hard border on the island of Ireland and a balanced, fair and temporary compromise, in which the EU, Brexiteers and unionists all make concessions.
Issues surrounding the Irish border were near non-existent during the 2016 campaign; however, they soon became key during the negotiations. The EU took up the Irish position and both sides rightly insisted they would ensure the border between Northern Ireland and the Republic remained frictionless, upholding the spirit of the Good Friday Agreement. Contrary to what many believe, a commitment to prevent a hard border wasn’t explicitly stated in the GFA. However, the idea that movement of goods and people across the border shouldn’t be disrupted was part of the spirit of the deal and recognised by both the UK and Irish governments.
In looking for ways to prevent a hard border without regulatory alignment, Brexiteers such as Dominic Raab have frequently suggested technological solutions to the backstop, often citing the use of technology on the Norway-Sweden border. But the reality is that such solutions simply don’t exist yet.
There isn’t a border in the world without physical infrastructure, apart from those in which both countries are in the single market and customs union. The Norway-Sweden border has physical customs checks, despite both countries being in the single market. Likewise, the Turkey-Bulgaria border has an average waiting time of about three hours due to the need for documentation, such as export licenses and transport permits. These cases show clearly the predicament facing all countries sharing a landmass — in spite of them being in the customs union.
The EU and UK therefore agreed on the backstop as a realistic compromise: Northern Ireland would maintain regulatory alignment with the EU in areas such as goods and sanitary products, whilst the whole of the UK would enter a customs union with the EU. This customs union was originally intended to be just in Northern Ireland, but Theresa May negotiated the change in an attempt to reduce divergence and conciliate unionists both in Northern Ireland and within her own party.
In agreeing to the backstop, the EU made a significant concession, by allowing the UK Government to cherry-pick. The fact that Northern Ireland remained in some parts of the single market but not others contradicted the EU’s long-held mantra of the indivisibility of the four freedoms of the single market (goods, people, services and capital). This is something that is mentioned in the Political Declaration as a condition for a future FTA, and gave Northern Ireland privileged access to the single market for goods with very few obligations.
Unionists and Brexiteers also made concessions in the backstop, with limited divergence between Northern Ireland and the rest of the UK and by agreeing to remain temporarily in the customs union.
There were also a number of clauses in the Withdrawal Agreement that gave the UK greater power in the backstop. Namely, the fact that the UK could decide to extend the implementation period by up to a year if an FTA hadn’t been reached by December 2020 rather than implementing the backstop.
Further, whilst Brexiteers often claim the backstop is an attempt by the EU to ‘trap’ the UK in a customs union, the text of the backstop declares both sides’ intention for it to be temporary and obliges them to work towards a subsequent agreement that will supersede the application of the backstop. Whilst many have dismissed the EU’s sincerity in agreeing to replace the backstop once realistic alternative arrangements arise, the backstop, as aforementioned, is far from politically convenient for the EU and they would almost certainly want to scrap it as soon as that option becomes possible.
The backstop was therefore a necessary compromise, in which no party lost out a great deal more than the others, and one which was pledged as a temporary solution that would be replaced as soon as a practicable alternative arrived.