Political deadlock over the Northern Ireland Protocol, also known as the backstop, has become the major obstacle to the Government securing parliamentary support for the Withdrawal Agreement and an orderly exit from the European Union on 29 March 2019.
The UK, Ireland and the EU unanimously agree that there can be no return to a hard border on the island of Ireland and that the many forms of cross-border cooperation which have developed since the Good Friday/Belfast Agreement must be protected. Irrespective of the profound consensus around this view, disagreement over how to deliver this shared goal has brought the UK’s exit negotiations to a standstill and increased the likelihood of the UK leaving without a deal on 29 March 2019 and the possibility of not leaving at all.
The key contention between the UK and EU negotiating positions on the backstop derives from their differing approaches to avoiding a hard border. The UK favours “specific solutions” such as maximum facilitation whereas the EU has advocated that either Northern Ireland or the UK as a whole maintains alignment with EU rules. The backstop arrangements in the Withdrawal Agreement succeed in obviating the need for border infrastructure or related checks and controls on goods travelling across the land border by requiring Northern Ireland to maintain a high degree of alignment with EU rules. As a consequence, goods travelling between Great Britain, which is not required to maintain the same level of EU regulatory alignment, and Northern Ireland will face new trade barriers. This solution sacrifices the integrity of the UK internal market in order to facilitate frictionless cross-border trade between Northern Ireland and Ireland. Concern has also been expressed that the backstop implies a UK-EU customs union will be taken as the baseline for construction of the future UK-EU trading relationship. It is a solution which four of Northern Ireland’s pro-Remain political parties describe as a vital insurance policy but has proved unacceptable to the House of Commons in its current form.
We recommend the EU and UK clarify, in legally recognisable terms, before the 12 March 2019, their joint expectations regarding key phrases in the Withdrawal Agreement which set out the conditions any future UK-EU agreement must meet in order to succeed the backstop. This would build trust and ensure both sides share the same understanding of what a future relationship, that can supersede the backstop, could look like. We also recommend that the Political Declaration be amended, and the preamble to the Protocol be clarified, in a judiciable form, to make absolutely clear that the backstop arrangements are designed to prevent a hard border only and should not be taken as the baseline starting position for negotiations on the future UK-EU relationship.
The Committee has also examined the availability of technical solutions or alternative arrangements for avoiding a hard border in Northern Ireland. The balance of evidence suggests that a technical and systems based approach to keeping the land border on the island of Ireland much as it is today, far from being a ‘unicorn’, is achievable within the Implementation Period anticipated by the Withdrawal Agreement. The principal impediment is a lack of political trust and goodwill between the negotiating parties.
Published: 9 March 2019