The Conundrum of the Irish Backstop to Prevent Brexit

One of the major aspects of the bizarre failure of the UK to leave the European Union is the inability of the government of the UK to resolve the issue of passage over the border between Northern Ireland and the Republic of Ireland.

The Border Issue

The border was set up as a consequence of the formation of the Irish Free State in 1922 following a civil war and the partition of Ireland. Its constitution later maintained a claim on the territory of Northern Ireland where unification was later pursued by the actions of the Irish Republican Army. Reconciliation between the two sides was achieved in the Good Friday Agreement of 1998. This was an international agreement binding on both sides (and included the European Union). The accord entailed that the Republic of Ireland relinquished territorial claims to the territory of the North. Moreover, residents of the North had the rights of citizenship to the UK or the Republic of Ireland or could claim both. Even before the Agreement of 1998, citizens of Ireland had the right of free movement within the United Kingdom. As members of the European Union, goods also freely passed between the UK and the Republic of Ireland. 

The UK’s declaration to leave the European Union had implications for the border between the UK and the EU. The UK would not be part of the single market which ensures the seamless passage of goods between the member states. Neither would it be part of the Customs Union which maintains common tariffs with non-EU countries. Clearly, if the UK and the EU had separate trade accords then they had to

be policed in some way between EU border of Ireland and the Northern Island – a part of the UK. The Good Friday Agreement specified cross-border co-operation between the UK and Ireland, and the removal of checks on the border. It has been generally recognised that the absence of a physical border between the two countries has facilitated peaceful relationships. 

The UK-EU Withdrawal Agreement

The Withdrawal Agreement between the government of the UK and the Commission of the EU specifies that ‘in the absence of agreed solutions, the UK will maintain full alignment with those rules of the internal market and customs union which now or in the future support North-South cooperation, the all-Ireland economy and the protection of the 1998 Agreement’. 

However, the UK would not be able to leave either the single market or the customs’ union until such an ‘agreed solution’ (such as a free trade area) had been concluded with the EU. This is known as the ‘backstop’. Hence if no solution could be found then the UK would effectively remain in the Union with no unilateral means of exit. These conditions led to the Agreement being rejected by the British parliament in January 2019. 

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 The ‘No Agreement’ Scenario

Open to the UK would be two options: to have no agreement or to find some alternative means to a hard border to police the border. A ‘no agreement’ could work if both sides agreed to some special arrangements for the transit of goods, as freedom of movement of people was assured prior to the Good Friday Agreement. However, such arrangements for the transit of goods could not be negotiated until the UK had actually left the EU. In the meantime, there would be considerable delays at the border. Just how long these would be is a matter of conjecture. 

From the EU’s point of view, a free trade agreement might appear to give the UK far too favourable terms. It would have the advantages of the common market with none of the obligations of membership of the EU: no payments would be required into the EU budget and the UK would be able to negotiate its own trade deals with third parties. This is one of the reasons behind the Commission’ unwillingness to accede too readily to the UK’s demands for a free trade area. 

It is very much in the interests of the leaders of the EU to keep the UK in the club. It provides not only a source of funding but support for the kind of economic policies favoured by the northern hegemonic countries. The departure of the UK will tilt the voting pattern towards the southern and eastern members. The loss of the UK would symbolically be a defeat for the EU and encourage other disaffected countries. Hence there is a predisposition on the part of the EU to make it difficult for member states to leave. 

‘Alternative’ Border Arrangements

Could there then be an alternative to a ‘hard border’ to resolve the border issue? The answer is yes. Whereas the current Withdrawal Agreement advocated by Theresa May has been defeated by a large majority, in January 2019 the Brady amendment was agreed by Parliament. This amendment proposed simply ‘alternative arrangements’ on the Irish border. 

Such arrangements could follow similar processes to those already in place between Switzerland and the EU. Currently procedures operate between the UK and the Irish Republic to cope with value added tax, excise duties and the difference in currencies. Current arrangements between trading blocs manage checks on goods at the places of origin and destination, not at the border. 

In August 2018, the British Government proposed similar arrangements not involving border posts or lorry stops. Electronic monitoring, ‘trusted trader rules’ and exemptions for small business would be devised. As Graham Gudgin, of the Centre for Business Studies at the University of Cambridge, has pointed out, these proposals are similar to arrangements on the US/Canada border; customs clearance is automated on most border crossings, and the EU is planning measures for complete electronic clearing. These measures will operational by 2020, which is the date set for the UK to leave the Customs Union. 

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 The EU and Irish Government Position

However Jean-Claude Juncker, on behalf of the EU, has dismissed these proposals as ‘magical thinking’ and the EU has insisted on some form of verification until (and if) some trade deal is agreed. The Irish government has changed its policy since Leo Varadka replaced Enda Kenny in 2018. It now claims that such electronic devices will not work and it is contended that the institution of checking points will be a threat to peace in Ireland. 

This is a specious argument. Even in the worst case scenario of checking points for goods being erected at major border crossings, the political situation since 1998 has changed in Northern Ireland in the direction of stability. It is speculative whether or not erecting such posts would increase the existing levels of civil friction. 

A more likely explanation is that the EU Commission is seeking not simply to delay but to thwart Brexit. And there is a suspicion that the current Irish political leadership would like to place the customs border in the sea between the UK and Ireland. This is one strategy to move to a united Ireland – though such a course would require a referendum in Northern Ireland. One unanticipated consequence of the Conservative government falling from power in any forthcoming election, following its unacceptable handling of Brexit negotiations, would be the advent of a Labour government. Its current leader, Jeremy Corbyn, has been a long standing sympathiser for the unity of Ireland. 

A Solution

One might conclude that the present Withdrawal Agreement, amended to include the alternatives suggested above, would be accepted by the British Parliament and thus break the stalemate. In this case, Prime Minister May would return to Brussels and present the amended Agreement. The onus would then be on the EU Commission.

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