There has been much noise, pretty much all of it negative, about the Irish Backstop contingency included within the Withdrawal Agreement. Members of Parliament largely oppose it and are refusing to pass the Withdrawal Agreement through the House of Commons and the EU is refusing to renegotiate, leaving withdrawal negotiations at a standstill less than two months out from Brexit Day. We thought it would help to put together a brief explanation to the ‘Backstop’ to explain what it is.

What is it?

The Backstop is allegedly a brilliant piece of wisdom from Theresa May’s government[, according to Mark Rutte, the Dutch Prime Minister.

The Backstop is a contingency plan which comes into effect in the highly probable event that the EU and the UK do not agree on a trade agreement at the end of the transition period (The withdrawal agreement governs the relationship between the EU and the UK between the transition period, which is currently 21 months from the time the UK leaves the EU). Essentially, it keeps the border between Ireland and Northern Ireland invisible but has many conditions that MPs find unfavourable.

MPs are panicking about it as they know that a comprehensive trade agreement probably cannot be agreed within 21 months of leaving, despite Liam Fox’s promises that the trade agreement would be the “easiest trade deal in history.” Whilst the agreement should be easy in theory, it has taken the best part of two years to just come to get to our current position on the Withdrawal Agreement which only governs the transitional period. It will undoubtedly take a lot longer for a comprehensive grade agreement.

Why is it problematic?

The backstop conflicts with the sovereignty of the United Kingdom of England, Scotland, Wales and Northern Ireland and the principle of Parliamentary Sovereignty[. The UK government will be unable to create legislation in certain areas of customs applicable to Northern Ireland while the Backstop is in place.

It also creates a regulatory and customs border between Northern Ireland and the rest of the UK. This means that any good/product that is being shipped into Northern Ireland from England, Scotland or Wales will be treated as if it is coming in from a third country.

The Backstop would also put the rest of the United Kingdom at a competitive disadvantage to Northern Ireland. Companies would have an incentive to be based in Northern Ireland or carry out activities in Northern Ireland as any product or good created by a company based there would be able to place goods on the EU market as if it originated from within the EU.  Companies based in the rest of the UK would have to put their products through examinations and overcome regulatory hurdles before being able to place their products on the EU market.

What is the aim of the Backstop?

The aim of the Backstop is to ensure that there will be no hard border between Ireland and Northern Ireland. This point is particularly of importance and was commented upon by the Dutch Prime Minister in the link provided prior. Part of the Good Friday Agreement and as part of ensuring continuing peace in Northern Ireland would include making sure there is no hard border between Northern Ireland and Ireland. If there were to be a hard border between Northern Ireland and Ireland it would damage North-South co-operation in areas such as transport, broadcasting and tourism, which both the UK and Ireland are constitutionally required to do. There is also a worry that a hard border could lead to “the Troubles” being reignited.

The Irish Government is of the opinion that the open border is the “most tangible sign of the peace process“. So it’s clear that some sort of mechanism is needed in order to maintain peace.