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Can a feasible alternative to the 'Irish backstop' be reached before 31st October?

Laura Hutchinson, Head of UK Political Intelligence | Dods Monitoring

5 min read

Even if Boris Johnson were to soften his position on the ‘Irish backstop’ a time limit or exit clause is an unworkable position for the EU, writes Dods Monitoring’s Laura Hutchinson.

Prime Minister, Boris Johnson, was elected by Conservative Party members on the promise to leave the EU on 31st October, “do or die”. His premiership now depends on whether he can successfully convince the EU to renegotiate the Withdrawal Agreement and replace the Irish backstop with an alternative arrangement.

However, this looks increasingly unlikely and it is now more likely the Prime Minister will be compelled to request an extension to Article 50 on 19th October due to a statutory requirement in the European Union (Withdrawal) (No 2) Act, otherwise known as the Benn Act.

What is meant by the “Irish backstop”?

The backstop is a key protocol within the Withdrawal Agreement that was negotiated by Theresa May and the European Union.

It is designed to be an insurance policy that will ensure there is no hard border between the Republic of Ireland and Northern Ireland, even if the EU and UK do not conclude arrangements on their future relationship by the end of the two-transition period.

It would create a “single customs territory” for the UK in which no tariffs on trade in goods would apply and most trade restrictions would be removed.

Critics argue it would lead to ‘Brexit in name only’ by keeping the UK in a single customs territory with the EU and risks regulatory divergence between Northern Ireland and the rest of the UK.

A time limit or ‘exit clause’?

In January 2019, Boris Johnson championed an exit clause – or ‘Freedom Clause’ as he characteristically referred to it: “a hole at the bottom of the lobster pot.”

However, since becoming Prime Minister his language has hardened and he is now demanding the backstop is removed in its entirety.

Even if Johnson were to soften his position, a time limit or exit clause is an unworkable position for the EU. The need for the backstop is predicated on the need to avoid a hard border on the island of Ireland, and it will remain in place until an arrangement or agreement that solves the border issue is in place. They cannot allow the backstop to be terminated, or expire, before this happens.

A Northern Ireland only backstop

One suggestion has been to scrap the shared customs territory detailed in the backstop and apply it only to Northern Ireland with a customs border being drawn in the Irish sea.

This was the original proposal from the EU to Theresa May but was rejected due to the backlash from the Democratic Unionist Party on the basis that it put the union at risk by creating regulatory divergence and risking customs check and potential tariffs between Northern Ireland and the rest of the UK.

It is highly unlikely a Northern Ireland only backstop would get enough support to pass the House of Commons. Speaking in early September, following a “very good meeting” with newly elected Boris Johnson, DUP leader Arlene Foster insisted that Johnson had confirmed his rejection of such a policy and insisted it would not have “unionist consent.”

The Government’s official proposal for an “amended protocol on Ireland and Northern Ireland”

HM Government have now published their long-awaited alternative proposal, which would see Northern Ireland leave the EU Customs Union, along with the rest of the UK, at the end of the transition period and ensure customs checks take place “electronically” or with a small number of “physical checks” at other points on the supply chain. It states this should be coupled with a firm commitment that neither the EU or UK would ever conduct checks at the border.

The proposal sets out an all-island regulatory compliance zone on the island of Ireland that covers all goods, including Sanitary and Phytosanitary and agri-food rules. 

However, for this to come into place, the proposal sets out that Northern Ireland Assembly and Executive would have to give consent to enter into this regulatory zone at the end of the transition period. Commitment to it would then have to be ‘reaffirmed’ every four years.

The EU have labelled the proposals unworkable in their current form, highlighting that it breaches a number of their red lines.

There is concern the proposal leaves the Single Market vulnerable: The Northern Ireland Executive and Assembly could effectively veto staying in regulatory alignment with the EU at any stage which would threaten the Single Market if the border remained open and Northern Ireland did not stay aligned to EU standards.

The Northern Ireland Executive has not been functioning for over 1000 days: The power sharing executive collapsed in 2017 and has not returned. This proposal is likely to further divisions within the parties in Northern Ireland and make a functioning executive less likely.

Prolonged uncertainty: There is concern that it would prolong Brexit uncertainty, particularly for business and industry on the island of Ireland by having to reaffirm the agreement every four years.

There is concern that the proposals could threaten the Good Friday Agreement: Although the Government have insisted there would be no hard border, leaving the customs union as proposed would necessitate checks and controls on the island of Ireland.

An extension to Article 50 is more likely than a deal

There is no obvious “alternative arrangement” to the backstop that is currently feasible or could be in place before exit day. 

The EU will expect significant compromise and concessions from the UK Government on their proposals, which the current Government are unlikely to offer or be able to pass through Parliament.  Both sides expect further clarification before the EU Council Summit on October 17th, but an extension to Article 50 is now more likely than a deal being reached before exit day.

Any extension is likely to be followed by a general election, in which all parties will fight to get a mandate for their version of Brexit before once again returning to renegotiations with the EU—the credibility and success of which will again centre around the issue of the border on the island of Ireland.


To view the full report and analysis of the feasibility of these various scenarios, click HERE.

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