ISSN 2330-717X

How Brexit ‘Backstop’ May Scotch May’s Withdrawal Deal – Analysis

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By Andrew Hammond*

Albert Einstein is sometimes credited with having said that the definition of insanity is doing the same thing over and over again and expecting different results. The Brexit process may provide vindication of this over the Irish border issue.

Theresa May visited Belfast on Tuesday and Wednesday to stress her commitment, again, to ensuring there is no post-Brexit “hard border” in Ireland.

With the odds stacked against her bid to save her EU exit withdrawal deal, and possibly also her prime ministership, she is desperately seeking a breakthrough alternative to the “Irish backstop.”

The key challenge, which she will discuss with European Commission President Jean-Claude Juncker in Brussels on Thursday, stems from the future status of the border between the Republic of Ireland (which will remain in the EU) and Northern Ireland (which is scheduled to leave the Brussels-based club along with England, Scotland and Wales at the end of next month).

The issue here is that, because of the May government’s “red lines” of leaving the EU single market and customs union, her Brexit withdrawal deal contains a so-called backstop designed to avoid a hard border (any kind of physical perimeter or visible customs checks) between the North and the rest of Ireland.

To be sure, all parties have repeatedly stated their desire to avoid a hard border. And the preference is to keep an open border in the context of a future potential over-arching post-Brexit UK-EU trade deal to be agreed in the 2020s if May’s withdrawal agreement (or a variant of it) is approved. 

Yet, if the UK cannot agree such a future trade deal, the backstop would be imposed as a position of last resort, unless or until other arrangements are agreed by all sides to ensure there is no hard border. Under this backstop, Northern Ireland would stay aligned to some rules of the EU single market, meaning that goods crossing the border would need to be checked to see if they meet EU standards. It would also involve a temporary single customs territory effectively keeping the whole of the UK in the customs union.

Amidst this complex regulatory and economic issue, a political storm of the first order is threatening not just the Brexit withdrawal deal, but also May’s government. That is, while the UK Cabinet and EU-27 agreed the backstop last year, many Brexiteers in May’s Conservative Party, and also MPs representing the Northern Irish Democratic Unionist Party (DUP), who are propping up the government, are vehemently opposed.

They argue that the UK could, in effect, find itself “trapped” in this backstop arrangement for many years. And, moreover, that it could politically divide Northern Ireland from England, Scotland and Wales in the coming years.

With the March deadline approaching, the odds are stacked against May finding a breakthrough this month after around two years of previous negotiations. The challenges facing her are at least four-fold.

Firstly, the EU is currently refusing, for now, to renegotiate the Brexit withdrawal deal. Secondly, there seems no obvious alternative to the backstop other than a future free trade deal. Take the example of the UK government’s assertions of how digital solutions can help ensure that the Irish border remains “soft” post-Brexit.

Without question, digital technology can play a growing role in border tracking and management. Yet the nature of the Irish border casts significant uncertainty over whether current IT solutions can completely resolve this issue, given the several hundred crossing points, which an estimated 177,000 lorries, 208,000 vans and 1.85 million cars traverse each month.

A third challenge for May is the significant demands of her Conservative and DUP critics.

While some may be able to be bought off if she can secure a clear time limit to the backstop, despite EU reluctance to concede such a firm end date, even this would not satisfy all the Brexiteers.

Fourthly, this issue is also politically charged in Ireland beyond the DUP. Last year was the 20th anniversary of the 1998 Good Friday Agreement.

While the deal has achieved significant success, it now faces a potentially major new test with Brexit, with the specter of a harder border and the threat of renewed sectarian tensions between Protestants and Catholics.

Lord Trimble, for instance, who was first minister of Northern Ireland at the time of the Good Friday Agreement, earning him the Nobel Peace Prize, has previously said that any Brexit deal that leaves Northern Ireland with special status in the EU would kill a key tenet of the 1998 peace accord — that there would be no constitutional change without majority consent in Northern Ireland.

And he warned of the possibility that loyalist paramilitary groups could be provoked into returning to action if that core principle of consent was threatened.

Taken overall, May and the EU-27 appear to be heading toward continued impasse, unless either side backs down. A failure to move forward in February would mean increased prospects of an extension to the Article 50 process, which may only kick the can down the road, or the political and economic shock of a no-deal Brexit.

  • Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics


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