How likely is a renegotiation of the Northern Ireland backstop?

The future of Brexit is turning on the Northern Ireland backstop. It has become the most intractable problem in Britain’s departure from Europe. The backstop sunk Theresa May’s withdrawal agreement—and with it, her premiership. If they’re not careful, it could sink whoever comes next. While it remains in the Brexit deal, parliament could simply refuse to give its assent.

For their part, the EU and the Irish government insist the backstop must remain. Yet Conservative leadership candidates breezily claim that they could strip it out. Boris Johnson, the frontrunner, has said we need simply apply more negotiating force. Michael Gove and Jeremy Hunt are also promising changes, as is Sajid Javid—with a £500m sweetener for the Irish government. The hope is for a full removal or expiry date.

But what to make of those candidates’ promises? Is there really any prospect of renegotiating the backstop? Having spoken with leading politicians and legal experts it is clear that there is not. The backstop will remain in the deal and any serious strategy for Brexit must recognise this fact. The absence of realism on this point is regrettable, to put it mildly, and underscores our lack of preparedness for the challenges ahead.

The Northern Ireland backstop is an insurance policy to avoid a hard Irish border—and therefore safeguard the Good Friday Agreement. In the absence of other solutions, it would keep Northern Irish regulations aligned with the Republic and the EU. That would prevent the need for checks on the island but would necessitate controls down the Irish sea. For the DUP and other passionate unionists that is anathema. Meanwhile hardline Brexiteers fear the backstop could keep the UK as a whole tied closely to Europe within the customs union, with no prospect of escape.

Yet some of them insist the backstop can be changed. For Sammy Wilson of the DUP, "if the UK government adopts a strong stance in its negotiations with the EU" then "magically a solution to the Irish border which does not require the current backstop will emerge."

For Theresa Villiers, former Northern Ireland Secretary, the key point is that the backstop is simply not needed. Alternative plans worked up would "maintain a border which is invisible and free-flowing, but also compliant. These plans deploy existing technology and existing administrative flexibilities." Put those to Europe, some argue, and it will have to fold.

Renegotiation has impressive supporters in other quarters. Igor Judge, former Lord Chief Justice, told me earlier this year: "I can't think why there should not be an equivalent to a 'sunset clause,' which after whatever time you agree... either party could say thank you very much, it’s now over." The idea is that parliament signs up to a backstop but not in perpetuity.

Momentum is gathering. Earlier this year MPs signalled that they would back the withdrawal agreement with the backstop removed. You might remember the political jargon thrown around such as “Malthouse compromise” and “Brady amendment.”

Yet other experts in the field seem less convinced. There is deep scepticism about these “alternative arrangements” in Brussels. The technology to maintain an open border, they say, simply does not exist. And a discussion with several leading authorities on the subject confirms that renegotiation will be very difficult indeed. The EU is not just bluffing.

John Kerr, author of Article 50 and our former ambassador to the EU, argues that we made a "joint commitment to keep the Irish border as open as it is today. To time-limit the backstop would put that commitment, and the 1998 Belfast Treaty, in doubt, and the EU won't do that.”

Jean-Claude Piris, who was the EU’s top lawyer for 20 years, is similarly hard line. “You cannot have a time limit. You cannot ignore the GFA and the risks involved if controls at the Irish border were re-established just because a certain period of time would have elapsed." For Michael Lux, who was head of customs for the EU, "There is no way that the EU will water down, or agree to a time limit for, the stipulated conditions” he said. The so called 'alternative arrangements' [for keeping an open border] are in practice not possible."

So which side is right? There are several reasons to think the EU means what it says and will not cave.

One is that it can genuinely afford to walk away, while we cannot. The European economy is far larger than the UK’s, and no-deal would do far less damage. We send 43 per cent of our exports to the continent while they only send 7 per cent to us. This power dynamic has played out ever since we triggered Article 50 in 2017. There is little precedent for the EU backing down in the face of British intransigence. Indeed, recent comments from leaders like Emmanuel Macron signal that if anything, the mood on the continent is hardening against Britain.

The second reason is Britain’s flagging international reputation. The backstop is essentially insurance against a rogue future British government seeking to re-erect a hard border. And we have only added to that fear over the course of negotiations. Having initially signed up to the backstop in December 2017, the EU has watched in horror as Britain has attempted to twist its way out. Europe is therefore hardening its view on the necessity of the policy. As Katy Hayward, a Brexit expert at Queen’s University Belfast told me, “One irony is that the more the prospective PMs put pressure on the backstop, the more likely the EU is to dig in its heels" because of the fact that "trust and goodwill between the two has become severely diminished."

But there is one final reason, perhaps more important than any other. This is that the backstop is no longer simply about the backstop. For in reality, not all of the EU27 are preoccupied with the situation on the island of Ireland. The issue is not a top priority for states like Cyprus and Poland. The reason there has been such unwavering solidarity on this issue so far is because it represents something greater than customs, or even the open border in Ireland. As Hayward put it, the backstop is in part “about EU membership meaning something, ie that the 26 are fully behind Ireland and determined not to see it exposed by the decisions of a (soon to be outside) state… solidarity means a lot to small states in particular.”

For the EU, the backstop has become a touchstone for unity between member states, and crucially, the guiding philosophy of big states looking out for smaller ones. It will not discard such a measure for nothing.

The EU does not want no deal. It is possible that if Britain insists on walking away from the negotiating table, Brussels will blink and mildly alter the backstop. In that situation prime minister Boris Johnson may well get his version of the withdrawal agreement through parliament. But that version of events is, putting it diplomatically, unlikely. And even if we do walk out, we will soon seek side talks on damage-limitation. The first order of business for the EU will be reassurances on the Irish backstop.

So Britain is squandering yet more time ahead of the firm 31st October deadline. The months are ticking by and yet still the debate has not moved on. Whoever becomes our next prime minister needs to recognise the hard truths inherent in Brexit.