EXPLAINED: Where are we on the Northern Irish Brexit backstop problem?

Posted On: 
23rd October 2018

Theresa May appeared to buy herself a little time on Brexit yesterday when she laid out her plans for the Northern Irish backstop issue. But what did she say and what does it all mean?

Theresa May and EU Commission cheif Jean-Claude Juncker
PA Images

What did the PM say yesterday?

Theresa May was facing a tough audience as she updated MPs on the Brexit negotiations in the wake of the latest European Council summit. She told the Commons a deal was 95% done - with the remaining 5% centering around the Northern Irish border conundrum: How to ensure the frontier stays open in the event of a no-deal Brexit. The EU has called for Northern Ireland alone to remain in a customs arrangement and parts of the single market - effectively creating a new trade border down the Irish Sea. Theresa May has said that is unacceptable.

Instead, the PM effectively put two options on the table yesterday. She said Britain could either extend the Brexit transition period - which is due to end in December 2020 - or sign up to a UK-wide customs arrangement with Brussels. She said the former was her preferred option in order to reduce the amount of change business would have to undertake, but insisted both would have to end “well before” June 2022. Crucially, she said she wanted her time-limited customs proposal to be enshrined in law.


What does it mean?

The bullish stance from the PM was a political appeal to her pro-Brexit backbenchers who are worried about prolonged EU membership of any form. The promise that any arrangement will be long over by the time of the next election sounds like an assurance they will be able to tell voters Brexit was delivered before they head to the ballot boxes again. But all such assurances are political until the EU agrees to them, and backbenchers will have that at the forefront of their minds. 

We already knew the PM would not accept cutting Northern Ireland off from the rest of the UK, and we knew she was open to extending the transition period for some months. But insisting her proposal for a UK-wide customs plan should be made law - including its time-limited nature - is the red meat that could calm her agitated backbenchers. If they know an unpalatable situation has a definite end point some of the less dogmatic ones might be swayed enough to support her. 

But Anand Menon, from Brexit think tank UK in a Changing Europe, explained that a simple statement from the PM is unlikely to be enough to quell fears. He told PoliticsHome: “What she’s saying is something better will be invented or will come along. Until it does we recognise the need for this customs thing. What she has to try and do is wring out of the European Union language that makes it sound certain they will give us the customs thing and makes it sounds like they understand it might be replaced.”


What do Tory MPs think?

Chief Brexit agitator Boris Johnson was clearly unimpressed last night (did we expect anything else?) when he released a video message branding the Chequers plan “a cheat and a fraud”. Jacob Rees-Mogg, chair of the pro-Brexit European Research Group, meanwhile told PoliticsHome: "Neither of those options is attractive both are extensions of the vassal state where we would have to obey rules we had not had any say over." No shift there, then.

One of the big worries from the Brexiteers is how much cash the UK will end up on the hook for if it extends the transition. Going beyond December 2020 means moving into the next budgetary period for the EU, and nobody expects the UK to be allowed access without something of a fee.

Tory MP Simon Hart - who leads the Brexit Delivery Group (the closest thing to centrist Tory MPs when it comes to Brexit) - said it would be foolish to “fall out of bed in the last few hours of the negotiations because of the potential additional price tag”. He urged fellow MPs to grit their teeth and bear either of the two options in order to secure a deal. But he noted that backbenchers will be unlikely to sign up to an extended transition period unless it really looks like it will lead to a breakthrough. He warned the PM against asking for an extension in the hope that “something will crop up” to save her bacon.

There was some hope last night when pro-Brexit Tory organiser Steve Baker pulled his amendments to the Northern Ireland Bill that risked tying the Government’s hands on the backsop. It suggests he and his allies are willing to give the PM a little more time to work out her plans and try to sell them to Brussels.


What will the EU think?

The EU has so far said any backstop cannot be time-limited. If you need a fall-back mechanism to avoid a damaging scenario there must be no chance that fall back could fail, the thinking goes. The suggestion of keeping the UK in the transition period could offer a way forward, but if the UK insists it would have to come with an end-date the EU is unlikely to sign up to it. RTE reported today that the EU could be open to a UK-wide customs arrangement as a separate treaty, but again the EU will want any such plan to have an open-ended element.

Anand Menon says: “I don’t think they are going to sign up to something and negotiate it with the Brits saying this is just temporary. From the EU’s point of view why the hell would you sign up to something that is just temporary?”

He also notes that her call for the customs plan to be legally binding is unlikely to work. The issue harks back to one of the first rows the UK had with the bloc: that of sequencing. The EU has said an all-UK customs arrangement would be part of the future relationship, which will not be legally binding, but the PM wants it in the withdrawal agreement, which is legally binding. The withdrawal agreement will be done first, meaning the PM might have to sign up to something unpalatable before the fudge Tory MPs can swallow can be added on.