This week the Government delayed a vote in the House of Commons on the Withdrawal Agreement and the Framework for the UK and EU’s future relationship. One of the major issues MPs are as yet unable to agree on is the ‘backstop’. The Prime Minister is hoping to get further reassurances from the EU on this issue, to improve the chances of MP’s approving her ‘deal’. Here we look at what the backstop is, if it’s likely to be used, and if the UK can then exit from it.

What is the backstop?

The backstop is a guarantee that whatever happens during the negotiations between the EU and UK on the future relationship, the open border between Ireland and Northern Ireland will be maintained, and the Good Friday Agreement respected. It is often described as an ‘all weather insurance policy’.

The Withdrawal Agreement sets out what specific arrangements will be put in place in Northern Ireland to make this guarantee work. Unionist parties like the DUP and UUP reject the backstop, saying separate arrangements for Northern Ireland threaten the Union with Great Britain. The DUP has said that the Withdrawal Agreement is “worse than no deal”.

Other political parties in Northern Ireland (Sinn Fein, SDLP, Alliance and the Greens), welcome the backstop, seeing it as a necessary insurance policy that protects the Good Friday Agreement and prevents a hard border with Ireland.

What’s in the Withdrawal Agreement?

The Protocol on Ireland/Northern Ireland (and its 10 annexes) runs to over 170 pages, forming around a third of the Withdrawal Agreement that was published a few weeks ago. This is the ‘backstop’, translated into a legal text (read our full analysis of the Protocol and the rest of the Withdrawal Agreement).

The backstop doesn’t just cover Northern Ireland, but also provides for a UK-wide customs union with the EU, covering all goods (except for fish). Under the backstop, the whole UK will also be subject to ‘level playing field’ restrictions, principally the EU’s rules on state aid and competition law, with commitments to not downgrade domestic policies in areas such as labour, social and environmental standards. In addition, Northern Ireland only will be subject to EU regulations in areas such as VAT, agriculture, the environment, electricity markets and the EU’s Customs Code.

Will the backstop be used?

The EU and the UK have made clear that their preferred outcome is for the future relationship to solve the Irish border problem, and for the backstop to never be used.

Article 2 of the Protocol reiterates the commitment made elsewhere in the Withdrawal Agreement that both sides “shall use their best endeavours” to conclude an agreement that supersedes the backstop before the end of the transition period.

However, many commentators question the practicality of the UK and EU concluding a future relations agreement by this time.

Article 185 of the Withdrawal Agreement states that the Protocol “shall apply as from the end of the transition period” (i.e. after 31 December 2020). The backstop, therefore, comes into force automatically; there is no active process that ‘triggers’ it.

The only course of action that can prevent the backstop coming fully into force at the end of the transition period is the EU and UK concluding a future relationship agreement that prevents a hard border between Ireland and Northern Ireland.

However, Article 132 of the Agreement allows the UK to request (before 1 July 2020) a one-off extension to the transition period which will be considered by the EU-UK Joint Committee.

If the two parties haven’t come to an agreement by the end of the extended transition period, then the backstop will come into force.

This is, in effect, what the backstop was designed to be, an insurance mechanism, that would come into play and provide a temporary bridge until a future relationship can be negotiated.

Exiting the backstop

Article 1 of the Protocol makes clear that the backstop’s legal provisions shall apply “unless and until they are superseded, in whole or in part, by a subsequent agreement”.

At the UK’s request, a review mechanism (Article 20 of the Protocol) was also provided for. Either party can, after the end of transition period, notify the Joint Committee (a body made up of representatives of both the EU and the UK) that they believe the backstop, in whole or in part, is no longer necessary. The Joint Committee must consider this request within six months. The decision on whether the backstop is still required must be made by mutual consent, there is no unilateral exit from the backstop.

The Protocol states that the Joint Committee “may seek an opinion from institutions created by the 1998 Agreement,” most likely a reference to the Northern Ireland Assembly and Executive.

No functioning NI Executive

At present, there is no functioning Northern Ireland Executive due to major disagreements between the DUP and Sinn Féin. Even if by the time the Protocol came into operation there was a functioning Executive, it is not clear that it or the Assembly would speak with one voice and come to a joint decision. And even if they did, it is not clear how much weight the UK or the EU might give to such a decision.

The ‘tests’ the Joint Committee would be judging for any solution to end the Protocol are set out in paragraph 3 of Article 1; it must:

address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions (our emphasis).

Norway Plus

Trade experts tend to agree that the only known existing option that would guarantee avoiding a hard border between Ireland and Northern Ireland is for the UK to remain in the Single Market and be in the or a customs union with the EU. This option (‘Norway plus’) has been ruled out repeatedly by the Government as it says it would not respect the referendum result, and it is not clear if Parliament would support it.

Other specific solutions

However, as the UK and the EU agreed in the December 2017 ‘Joint Report,’ the UK could still try and come up with other solutions that would ensure checks are not needed at the border.

Some of these solutions might be technological, based perhaps on the ‘Maximum Facilitation’ or ‘Max Fac’ option the Government put forward in its Position Paper on Ireland and Northern Ireland in August 2017.

Many experts are sceptical about the extent to which technology is the ‘answer’ to the border problem. The Northern Ireland Affairs Select Committee concluded in March 2018 in a report on the Ireland/NI border, that: “We have had no visibility of any technical solutions, anywhere in the world, beyond the aspirational, that would remove the need for physical infrastructure at the border.” Jill Rutter of the Institute for Government, produced a blog looking at the different types of solutions that might bring the backstop to an end.

What happens if both parties can’t agree that technological solutions or different forms of future relationships ‘solve’ the border issue?

There is one further avenue – the party wishing to end the backstop can ask the independent arbitration panel established by the Agreement to review the Joint Committee’s decision. However, the Government’s legal position on the Withdrawal Agreement makes clear that the panel would not be examining the evidence presented by a party, but whether that evidence was considered by the other party in ‘good faith’.

The Attorney General’s (AG) recently published legal opinion states that it would be “highly unlikely” the EU would act in a manner that would clearly demonstrate bad faith.

The AG’s conclusion of the review process is that:

[it] does not provide for a mechanism that is likely to exit the UK wide customs union without a subsequent agreement. This remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.

The AG is articulating the fear that many MPs have, that if talks break down, there may be no exit from the backstop.

However, he also concedes that the backstop would not be a “comfortable resting place” for the EU either, as it provides access for the UK, and Northern Ireland in particular, to the Single Market but without many of the obligations of membership, including payments to the EU budget. He also argues that the EU may face legal challenges if the backstop continues, as Article 50 does not provide for a permanent future relationship.

The fact that neither the UK or the EU might want the backstop to continue indefinitely has not been sufficient to assuage the fears of many MPs that it might. These fears have grown to such an extent that the Prime Minister has now announced she will return to re-negotiate with the EU to obtain further reassurances that the backstop will not be needed. However, many of the Agreement’s opponents want the backstop removed completely, or at least amended to allow the UK to exit it unilaterally. The EU has made clear it will not an accept an agreement without a backstop and argues that a unilateral exit defeats the point of the backstop – it no longer guarantees an open border in all circumstances.

It is not clear what will happen next but these events confirm that what is true for the Brexit negotiations will prove true for any potential talks on exiting the backstop – political, and not legal remedies, are the only ones that will allow the UK and the EU to create a new relationship.

Further reading

About the author: John Curtis is a Senior Library Clerk at the House of Commons Library, specialising in Brexit, Europe and the Irish border.