Brexit explainer: What is the backstop and why does it matter?
Simon Carswell answers the tricky questions
Neither party to the Brexit negotiations wants to see the return of a hard border but they cannot agree a plan on how to achieve this. File photograph: PA Wire
Why is the Irish Border such a big deal with Brexit?
The 499-kilometre border running from Carlingford Lough to Lough Foyle will become the only land border between the UK and the European Union after Brexit.
The 1998 Belfast Agreement brought peace to Northern Ireland and removed the need for border checks.
It also established north-south rules and institutions that helped solidify the Peace Process. The border is currently invisible and neither side wants the return of infrastructure along the border or the creation of a hard border.
So what exactly is a hard border?
It is a frontier monitored and protected by customs officials and border inspectors, and potentially police or military personnel if there are security issues around the border.
The general fear is that the return of customs officials or border inspectors would be so unacceptable to people who travel freely across an open border that it would lead to anger and, potentially, violence.
That could in turn lead to a police or military presence along the Border to protect check points. Customs and security posts along the Border were regular targets of republican paramilitaries during the 30-year Troubles.
Why would there be a need for border checks?
Different customs rules, regulations and standards will apply in Northern Ireland and the Republic if the UK is leaving the EU so the different rules could have to be enforced at a border.
What do the EU and UK want along the Border?
Neither party to the Brexit negotiations wants to see the return of a hard border but they cannot agree a plan on how to achieve this.
So have they come up with anything to solve this problem?
The EU and UK agreed in a political deal in December 2017 that a “backstop” was required in the withdrawal agreement – the divorce deal – that would guarantee an invisible border in the event of no other solution to achieve this being found in a Brexit deal, either in a specific solution for Northern Ireland or in a broader EU-UK trade deal.
The December 2017 agreement also aims to protect north-south cooperation, support the all-island economy and safeguards the 1998 Belfast Agreement. In March 2018 the two sides agreed that there had to be a legal text – not just a political declaration – around how this option would work in practice should no better option be found.
What exactly is the backstop?
It is an insurance policy written into the withdrawal agreement, or Brexit treaty, guaranteeing no harder border on the island of Ireland.
It would only be used as a last resort or the default option if the EU and UK could not reach an overarching free trade deal that would make trade so frictionless that there would be no border between the EU and the UK, including on the frontier between Northern Ireland and the Republic.
What backstop has the EU proposed?
Brussels believes a hard border can be avoided and the Belfast Agreement upheld if Northern Ireland remains fully aligned with the EU’s customs union and parts of the single market after Brexit.
This would mean matching the rules north and south of the Border for customs, energy, environmental regulations and laws covering agriculture and fisheries.
Northern Ireland would stick to EU rules covering state aid and would fall under the jurisdiction of the European Court of Justice in applying those rules. The EU’s chief negotiator Michel Barnier has insisted that this backstop can only apply to Northern Ireland.
Does the UK like the EU’s proposed backstop?
No. British prime minister Theresa May has said that no UK leader could agree to different rules applying to different parts of the UK that would separate Northern Ireland constitutionally and economically from the rest of the UK.
London argues that if the backstop only applies to Northern Ireland, it would effectively create a customs and regulatory border in the Irish Sea.
Does anyone else not like the EU plan?
Yes, the Democratic Unionist Party, the largest part in Northern Ireland whose 10 MPs at Westminster prop up May’s minority Conservative government, and hardline Brexit supporters within her party.
Both have said that Northern Ireland cannot be treated any differently from the rest of the UK after it leaves the EU in March 2019. They oppose any checks between Ireland and Britain and what they see as a border in the Irish Sea.
If there is no backstop . . . there would be a disorderly Brexit and the UK would crash out of the EU in March 2019
DUP leader Arlene Foster has warned that its “red line” that there could be no Brexit deal that would divide Northern Ireland from the rest of the United Kingdom was “blood red”.
The EU has since the summer been trying to devise a plan to “de-dramatise” its own backstop to make it more politically acceptable to the UK government and the DUP.
What are the UK’s proposals for a wider EU-UK trade deal that might avoid a hard Irish border?
May has said that under the UK government’s “Chequers plan” - the July 2018 proposal for an overarching trade agreement between the EU and the UK - the Border issue would be solved by effectively creating a free trade area for goods that would avoid the need for customs and regulatory checks between the EU and UK, including at the Border between Northern Ireland and the Republic.
European Council president Donald Tusk has said that the Chequers proposals would not work.
What backstop has the UK proposed?
The UK government has suggested a backstop that would keep the whole of the UK aligned with EU customs union rules for a limited time after the post-Brexit transition period – a standstill period when current EU economic rules continue to apply over the UK – expires at the end of 2020.
Can a compromise be reached on the backstop?
The concept of a two-part backstop has emerged in talks between the EU and UK in the so-called tunnel, the closed-door negotiating room in Brussels.
This would involve a Northern Ireland-specific backstop that would effectively give way to a UK-wide customs-only backstop with additional measures applying to the Irish Border, including extra customs rules to ensure Northern Ireland’s regulations remain aligned with EU standards.
That sounds like a way through this mess - is it?
The EU has hinted that it would accept the whole of the UK temporarily staying in the customs union but there are still problems here.
Hardline Brexiteers in May’s government are hostile to any backstop that could keep the UK or Northern Ireland subject to EU rules indefinitely and want the backstop to have an expiry date or release clause.
Brussels and Dublin officials argue that this would not be a backstop; it could not be an insurance policy if there was a way of backing out of it. It can be temporary “unless and until” a better solution is agreed but it cannot be time-limited or expire, they say.
Is there a way around this?
The UK’s Brexit secretary Dominic Raab has demanded a three-month time limit, saying that London and Dublin could accept a clause to allow the UK to withdraw from a UK-wide customs arrangement with three months’ notice.
Tánaiste and Minister for Foreign Affairs Simon Coveney has said that Ireland and the EU could never agree to a backstop that could be ended by the UK unilaterally and that these ideas “are not backstops at all and don’t deliver on previous UK commitments”.
So is this proposal dead then?
Not exactly. Taoiseach Leo Varadkar has said that a backstop with a three-month time limit would “not be worth the paper it is written on”, but has left the door slightly ajar for a potential solution.
He has said that Ireland was also willing to consider proposals for a review clause on the backstop, drawing some criticism from opposition politicians at home.
So where are we at now?
EU and UK officials have, as of today [Tuesday, November 13th], agreed the draft text of a Brexit agreement that addresses the Irish Border question. It still requires sign-off at a political level by the EU but, more crucially, by the UK government. The backstop chosen in the draft will be in the form of a temporary UK-wide customs arrangement with more specific and deeper measures for Northern Ireland that will make more closely aligned with customs and the rules of the EU single market than for the rest of the UK. This, the officials believe, will avoid the need for a hard border if the matter is not addressed in a future EU-UK trade deal. The issue of the review mechanism, it appears, will involve a joint EU-UK committee judging when all-UK customs union can be terminated.
But will it be agreed at a political level in London?
That is the big question. UK cabinet ministers have been called to meeting to discuss the draft agreement. Hardline Brexiteers including Jacob Rees-Mogg, chairman of the European Research Group, and other Leave supporters such as Boris Johnson and Iain Duncan Smith, have already come out strongly against the proposals even before they have become fully aware of them. Johnson, who resigned as foreign secretary over May’s Brexit proposals, said the deal was “vassal state stuff” and that it was “utterly unacceptable” that the UK would be bound by laws over which it had no say. The DUP’s Westminster leader Nigel Dodds said that if the deal was in line with leaks over the last few days, then it would not be acceptable to his party, which keep Theresa May in power.
And what happens if there is agreement on the backstop as set out in this draft?
If there is no backstop, there will be no divorce deal and no transition period. In other words, there would be a disorderly Brexit and the UK would crash out of the EU in March 2019. It is anyone’s guess how goods passing over the Irish Border would be treated in such a scenario but the UK’s chaotic departure from the EU could create all sorts of difficulties for cross-border trade and beyond.