EU withdrawal agreement: will we be stuck in the backstop?

One of the most common fears expressed by those pro-Brexit politicians who are critical of the “backstop” provisions in the Withdrawal Agreement (WA)—the Protocol on Ireland/Northern Ireland—is that the UK could end up being “stuck” in that backstop. Are they right?

There are two key elements to the backstop: the provision for possible extension of the transition period, at the request of the UK, up to “31st December 20XX”; and failing that, the “backstop” provisions in and annexed to the Protocol.

However, the transition arrangements will have a certain end, with any extension incapable of lasting beyond (probably) 2021 or 2022.

In contrast, the backstop provisions do not have a certain end. They come into effect automatically at the end of that period. As is now well-known, they provide for controversial arrangements that keep Northern Ireland in the single market for various purposes, as well as in the EU customs territory, and the UK as a whole in a single customs territory with the EU. The customs union is accompanied by various “level playing field” provisions committing the UK to maintain rules in areas including environmental rules and state aid.

Many fair criticisms can be made about the WA. But a common complaint is that Britain will be stuck in this backstop indefinitely. That argument is, in my view, distinctly over-egged.

By way of background, it is important to remember that it is a policy objective of the UK government (as well as, at least nominally, most pro-Brexit politicians) to keep an invisible Irish border. But many pro-Brexit politicians argue that there are technological, administrative and legal arrangements that could keep the Irish border invisible while letting Northern Ireland diverge from the EU.

The difficulty is that most informed observers—including me—disagree, and no matter how strongly you believe that “technological solutions” exist, the EU and Ireland are manifestly unconvinced. Until that changes, the objective of keeping the border invisible can be met only by a common customs territory/regulatory regime. Just as it requires two to tango, it requires two to take part in technological solutions.

Of course, a pro-Brexit politician who considers that a hard border is a price worth paying, will oppose the Protocol in principle. But few are willing to say that, at least in public. So what does the Protocol offer your average pro-Brexit politician? Will we really be stuck in the backstop for good? Are hardline Eurosceptics—who believe in technological solutions—right to be outraged?

I don't think so. It seems to me that the Protocol broadly offers such a politician as much as they could hope to get. First, the Protocol makes it clear that both parties are to do their best to negotiate arrangements that replace it. Article 1(4) makes it clear that the Protocol is temporary. Article 2 requires both the EU and UK to use their “best endeavours” (a strong obligation, going beyond an obligation to take reasonable steps) to conclude a future relationship that supersedes it. So, if the UK puts forward a relationship that includes technological arrangements, the EU would consider that in good faith and to agree it, absent good reasons why not. Article 20 provides for a review of the Protocol if either side considers that it is no longer “necessary” to achieve the objectives of North-South cooperation, avoiding a hard border, and protecting the Good Friday Agreement.

Second, those legal obligations are backed up with a binding legal arbitration mechanism. This is how it works.

Let us assume that the UK puts forward arrangements that would remove the need for the Protocol. If it does so, then the Joint Committee between the UK and EU must consider the UK notification and the reasons for it, and jointly decide whether the Protocol should continue to apply.

Since the Joint Committee can only decide that by unanimity, it is of course possible that the EU would reject the arrangements. In that case, the UK could take the matter to the neutral arbitration panel set up under Article 170 of the WA (consisting of senior lawyers, two from each of the UK and EU with an agreed neutral chair). The panel would be asked to decide whether the arrangements put forward meant that the Protocol was no longer necessary.

That panel would need to look at the reasons why the EU declined. These would be complex questions involving a range of factual and legal issues. But, critically, they would not as far as I can see be questions of EU law and hence would not be questions for the European Court of Justice (ECJ) to resolve.

The panel would look at all of this through the prism of the following legal points: (1) the backstop is temporary and not permanent; (2) it should be superseded as soon as it is no longer “necessary” (it wouldn’t be enough to say that it was preferable or more economical than an alternative that also worked); (3) the parties are generally obliged to act in good faith (Article 5 of the WA); and (4) both parties must use “best endeavours” to supersede it. That would make it hard for the panel to accept unsupported EU objections.

If the panel concluded that there was enough to avoid a hard border, then they would report and their report would be binding on the EU: Article 175 WA.

That all seems to me to offer a lot to pro-Brexit politicians who genuinely want to solve the Irish border issue. Indeed, it’s hard to see how they could have any more: the brute reality is that that issue can be solved only with the co-operation of the EU and Ireland, and, gunboats not being an option, that can be secured only by persuasion or by a binding legal mechanism.

Some cabinet ministers concerned about the “stuck in the backstop” problem are said to be looking at possible changes to the Protocol. Any substantive change is now likely to be impossible. But it is just possible that the EU might agree to insert an additional recital or article to the Protocol (or at least set out in a separate side letter) that the EU would consider in good faith possible technological solutions. That would simply make explicit what is in any event a clear result of the current provisions, and might therefore be possible for the EU to agree even at this late stage.

One final point. Much of the concern about the backstop appears to come from a belief that the EU is desperate to keep the UK in a permanent customs union. This seems to me to be a very bad take. Negotiating a viable long term arrangement would raise all sorts of problems as to how the UK is to have a voice in the setting of tariffs and negotiation of free-trade agreements: leaving the UK without a say is not sustainable in the long run. Moreover, such an arrangement would greatly complicate EU negotiations with third countries. Those points matter far more than the minor advantages of being able to prevent the UK from reducing its tariffs on oranges from all third countries to zero throughout the year. Pro-hard Brexiters of course have a vision of the UK negotiating significantly better trade deals than the EU currently has: but the brutal truth is that the EU just does not believe that that is more than fantasy.

The concerns about being “stuck” in the backstop are, in my opinion, greatly inflated. Indeed, one disappointing aspect of the debate over the last week has been the willingness of some publications and politicians to make or repeat a number of wholly exaggerated or fanciful claims about the WA, without bothering to check their accuracy with those who are used to dealing with complex provisions such as these. If we are to have a sensible debate about the WA—as well as other complex trade agreements in future—MPs and commentators need to do better.