How the backstop broke Brexit
Once hailed as a ‘diplomatic coup’ by Brussels negotiators, the backstop proved the undoing of Theresa May’s premiership – and may yet deliver the same fate to Boris Johnson’s. Sebastian Whale reports on how the question of the Northern Irish border became an impossible square to circle
One word with two syllables has changed the course of the Brexit negotiations. Its existence has caused resignations, consternation, and the demise of a beleaguered prime minister. Prior to the 2017-2019 parliament, it was not even part of Westminster parlance.
That the future of Northern Ireland did not feature heavily in the EU referendum campaign says much about Westminster’s blind spot to the affairs of the region. That Brussels identified the “unique circumstances on the island of Ireland” as one of three key issues to solve in the initial phase of negotiations highlights the role the Irish Government has played in shaping the talks. “People in Dublin really saw the issues a long way out, much more clearly, perhaps than people in London did,” Boris Johnson said in January.
The question of the divorce bill and citizens’ rights was high up the priority list when the negotiations began following the triggering of Article 50 on March 29, 2017. But the border in Northern Ireland and upholding the Good Friday Agreement has proved to be the toughest Brexit circle to square.
Brexit has implications for the relationship between Northern Ireland and the Republic of Ireland, which would remain inside the EU. Currently, goods and services are traded between the two jurisdictions with few restrictions. But with Theresa May committed to taking the UK out of the single market and customs union, for the first time there would be a land border between the UK and the EU. In normal circumstances, the EU would impose customs and regulatory checks at its border with any “third country”, to protect the integrity of the single market and to ensure that goods comply with the bloc’s standards.
Britain was committed to technical fixes and assurances on the future relationship, whereby the UK would maintain close regulatory alignment with the EU, to reduce the need for border checks. But the EU wanted more cast-iron commitments in the Withdrawal Agreement to protect against a hard border should talks on the new arrangements break down. The issue held up both sides reaching “sufficient progress” to move to the next phase of the discussions.
In December 2017, the UK and the EU agreed in a joint report three possible ways to avoid a hard border. Two centred around the future relationship and specific solutions for Northern Ireland, as desired by the UK team. Should such solutions not be found by the end of the transition period – then scheduled for December 2020 – both sides agreed the UK would maintain full alignment with the rules of the single market and customs union until alternative arrangements could be introduced. The concept of the backstop was born.
In baseball, a backstop is a fence or screen behind home plate which serves to prevent balls from leaving the playing area. The earliest use of the word dates to 1819, referring to a fielding position in cricket behind the wicketkeeper. Today, the backstop is seen as the ultimate insurance policy for preserving the Good Friday Agreement.
The wording of the joint report in December 2017 was interpreted in different ways. David Davis, then Brexit Secretary, warned No 10 that harmonisation between the UK and the EU was “contrary” to the Government’s Brexit strategy. Theresa May told him it was about “full alignment of outcomes, not full alignment of every single rule”.
In February the following year, the European Commission published a draft Withdrawal Agreement which proposed keeping Northern Ireland within the EU customs territory and common regulatory area. May said no UK prime minister could ever sign up to such an arrangement, as it would impose customs and regulatory checks between Northern Ireland and Great Britain – an effective border in the Irish Sea.
The former prime minister gathered her Cabinet at Chequers that summer. She unveiled plans for a temporary UK-wide customs union and a common rulebook on goods regulations. This, the UK side believed, would negate the need for a backstop. The EU rejected the time-limited customs union and the concept of a UK-wide backstop.
The proposals prompted the resignation of Davis and Steve Baker, a minister in his department. Boris Johnson quit as foreign secretary soon after. Davis explained to me in December: “At Chequers it suddenly slipped to effectively alignment of regulation. At that point I thought, well, this is not capable of being made into something that reflects the referendum.”
The draft Withdrawal Agreement was reached in November 2018. The EU had consented to a UK-wide ‘single customs territory’, dropping its previous opposition. A source on the UK negotiating team says this was an often overlooked “diplomatic coup”.
“It may have been a diplomatic coup,” says one Brexiteer Tory MP. “But this is why it was a problem that the whole process wasn’t politically-led. Any competent politician would have known that it was not a sellable solution here. So, you can’t blame the diplomats for thinking they’ve come up with an ingenious solution to things when they simply don’t understand the politics of it. The Government ought to have had somebody political in charge and Theresa May didn’t. She was the person who was in charge politically – she was not a political person, she doesn’t understand politics and had no idea what people think or how they would react.”
The backlash in Westminster was swift. The Democratic Unionist Party, who signed a confidence and supply agreement with the Conservatives after the June 2017 election, argued the backstop introduced regulatory divergence between Northern Ireland and the rest of the UK, and thus threatened the future of the union. Tory backbenchers were also deeply unimpressed, fearing the policy was a route to trapping the UK within the EU’s orbit – as the backstop would apply “unless and until” agreed alternative arrangements could replace it – and prevented the Government from pursuing an independent trade policy.
Despite assurances from the UK and EU sides that neither wanted the backstop to ever have to come into force, MPs were not assuaged. “There is an absurdity in leaving a treaty arrangement which we’re entitled to quit by giving two years’ notice in order to join a new treaty arrangement which we can only leave with the permission of the other party,” a senior Tory MP says.
“The more the government and the EU negotiators insisted that they never wanted the backstop to apply, the more ridiculous it became that they were also entirely insistent that it had to be a permanent – or capable of being a permanent arrangement – which would subvert what the British government had claimed at least was its policy, which was to leave the single market and the customs union.”
On 15 January, May suffered the largest ever defeat by a prime minister when the Withdrawal Agreement was defeated by 230 votes in the Commons. An amendment put forward by Conservative MP Sir Graham Brady later that month, which called for the Government to find alternative arrangements to the backstop, passed in the Commons. May would go on to lose two more crucial votes on her Brexit deal, after trying and failing to secure a time-limit or exit mechanism to the backstop.
In the Tory leadership contest this summer, Johnson committed to getting rid of the backstop altogether. But EU officials were insistent that the Withdrawal Agreement would not be reopened. “The backstop is part and parcel of the Withdrawal Agreement and we’ve said we’re not going to renegotiate that,” a senior EU official told The House in June. “What we can do if the new Prime Minister comes over and asks for it, is we can look at editing the political declaration on the future.”
Gabriele Zimmer, a former German left-wing MEP who sat on the European Parliament’s Brexit steering group, told me in June: “It was clear for us from the very beginning that the Good Friday Agreement was in danger. That is why we were sticking on the position that the Good Friday Agreement should be protected in all its parts. Me, as a former eastern German, I know exactly what it means to have a wall, I know exactly what it means if a border is dividing cities and the families.”
Johnson in August met German Chancellor Angela Merkel and French President Emmanuel Macron. No 10 has argued that some progress has been made on talks, but EU officials say negotiations have stalled. Reports suggest the UK PM is open to considering a NI-only backstop which was roundly rejected by his predecessor. Ahead of meeting Johnson in Dublin this week, Leo Varadkar, the Irish Taoiseach, said he would open to such an outcome.
“I don’t know if we can find some common ground around a Northern Ireland-unique solution, but we’ve always said as a Government that that’s something that we’re open to,” he said.
Upholding the Good Friday Agreement has become totemic for Brussels, in no small part due to the role played by the Republic of Ireland during the negotiations in uniting the member states around this aim. In much the same way, opposition to the backstop has solidified in Conservative and unionist circles in Westminster.
For some hardline Brexiteers, even if the PM did negotiate a time-limit or exit mechanism to the backstop – or against the odds got rid of it altogether – they still might not vote for Withdrawal Agreement. Others are more prepared to compromise. “I still think if it can be dealt with then I think that the Withdrawal Agreement can scrape a majority,” one MP says.
This rigidity, centred around opposition to and support for the backstop, leaves Britain closer to a no deal exit than ever before.