Now May must find a way between a hard Brexit and no Brexit at all

Backstop? Tick. Legally operable? Tick. No expiry date? Tick. No unilateral withdrawal? Tick.

On first inspection, the draft agreement between the UK and the EU published on Wednesday night fulfils the key requirements of the Irish Government.

The backstop – the promise to keep an open Border by maintaining the same rules over trade and customs in the both parts of Ireland – is there, no longer confined to Northern Ireland but now extending to all of the UK, even though there are some Northern Ireland-specific elements.

The UK will apply the EU’s customs code in Northern Ireland. This would allow Northern Irish businesses to bring goods into the single market without restrictions – which the EU side considers essential to avoid a hard border. Those goods will be marked “UK(NI)”.

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It is legally binding, justiciable in the courts of both the EU and the UK, with the UK undertaking to have “due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period”.

The backstop promise does not expire – the text even includes the key “unless and until” red line of the Irish Government. “The provisions of this Protocol,” it says, “shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.”

Transition period

If there is no final agreement at the end of the transition period in December 2020 the “EU-UK single customs territory” will continue. While Northern Ireland will remain part of this customs territory, Northern Ireland will remain aligned to those rules of the single market that are essential for avoiding a hard border.

Much of that has yet to be worked out by the joint EU-UK committee which will oversee its operations. But it is a clear commitment all the same.

Finally, the protocol on Ireland can only be ended if the EU and the UK “decide jointly” that this is what should happen.

The treaty is lengthy, complex and written in the dense, structured language of contracts that may be litigated in courts where every word is important. But it seems clear that the Irish Government got what it wanted – and more than it had at one stage hoped – out of the process.

The British agreed almost a year ago that there would be a backstop in the agreement, when they conceded its inclusion at the 11th hour during last December’s European summit.

The Irish Government was agnostic about whether the backstop was confined just to Northern Ireland, or whether it should cover the UK as a whole.

‘Cherrypicking’

Despite the belief in Irish Government circles that a UK-wide backstop would be preferable for Ireland because of the amount of east-west trade (vastly greater than North-South volumes), the EU had made clear that opening up the prospect of the UK remaining in the customs union could amount to the forbidden “cherrypicking” (ie, allowing the EU to take the bits of EU membership they liked, but not the rest).

However, privately Dublin was thrilled when the EU made its major concession of the talks, and signalled that if there were assurances that the British could not use customs union membership for unfair advantage over remaining EU countries, then a UK-wide backstop could be contemplated. This got around UK objections that an NI-specific backstop would undermine the United Kingdom, and unlocked the way for progress.

However, the doubt that remained in recent weeks – and which provided the final hurdle to get over in the talks – was whether the backstop would have an expiry date and whether the UK would be able to withdraw unilaterally from its arrangements.

UK’s concerns

On both questions, Ireland’s position was clear, and the EU did not budge. A time-limited backstop was not a backstop at all, and while – as the Taoiseach signalled a fortnight ago – a review clause could address the UK’s concerns about being trapped indefinitely in a customs union with the EU, this could not be a unilateral mechanism.

The Government’s requirements for the operation of the backstop were laid out again clearly by the Taoiseach in the Dáil yesterday.

“It does have to be there; it does have to be legally operable; it can’t have an expiry date; it can’t be possible for one side to withdraw from it unilaterally,” Mr Varadkar said.

Familiar terms

Having seen the text of the deal, Varadkar would not have advertised them again in such clear and familiar terms unless they were in the text. Even though Varadkar was tripping over himself not to say what was in the text – because, as he said, he didn’t wish to make things any more difficult for May than they already were – he had just, in effect, said what was in the text.

This was confirmed when the 585 pages of the draft treaty were published on Wednesday night. May will now seek to thread a devilishly difficult path through the middle way between a hard Brexit and no Brexit at all. The Taoiseach will seek to thread a less perilous middle way between claiming credit for achieving Ireland's objectives, and alienating nervous unionists.