The Northern Ireland backstop and the border: interim report Contents

1Introduction

1.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.

2.During this inquiry, the Northern Ireland Affairs Committee has built on its previous work, examining the land border between Northern Ireland and Ireland. We have scrutinised the backstop proposals and considered models for a future EU-UK relationship that could meet the needs of Northern Ireland. In this interim report, we examine the causes of the current impasse and propose solutions aimed at securing an orderly exit from the EU on 29 March 2019. We also look at the need for building trust between the UK and EU for negotiations on the future relationship.

The current political impasse

3.On 15 January 2019, the House of Commons voted by 432 votes to 202 not to approve the Withdrawal Agreement and Political Declaration on the future UK-EU relationship that the Prime Minister had agreed with the EU. This Agreement followed two years of negotiations.1 On 29 January 2019, the House of Commons gave its support by 317 votes to 301 for an amendment tabled by Sir Graham Brady MP and Dr Andrew Murrison MP (who is also Chair of the Northern Ireland Affairs Committee) which:

requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change.2

4.The Prime Minister has since met with EU leaders in Brussels to discuss ways in which “legally binding changes to the backstop” could be achieved.3 President of the European Commission, Jean-Claude Juncker, has said that the EU will not “reopen the Withdrawal Agreement”4 but discussions are ongoing to determine “which guarantees could be given with regard to the backstop that underlines once again its temporary nature and give the appropriate legal assurance to both sides.”5

5.In a joint statement on 20 February 2019, President Juncker and the Prime Minister “reconfirmed their commitment to avoiding a hard border” and “to respect the integrity of the EU’s internal market and of the United Kingdom”.6 Article 50 of the Treaty on European Union provides for an EU Member State to leave the EU with or without a withdrawal agreement or ‘deal’ within a two-year time frame starting from the formal notification of withdrawal by the leaving State.7 If there is no UK request, or no EU agreement, to extend the negotiations or if either the UK Parliament or the European Parliament or the other 27 EU Member States do not ratify the negotiated Withdrawal Agreement, there will be no ‘deal’ and the EU Treaties will no longer apply to the UK from 29 March 2019. On 26 February 2019, the Prime Minister informed the House of Commons that if the Government has not won parliamentary support for the Withdrawal Agreement by 12 March 2019 it will table a motion “asking this House if it supports leaving the EU without a Withdrawal Agreement and a framework for a future relationship on 29 March.”8

6.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 backstop arrangements (Protocol on Ireland/Northern Ireland)

7.The backstop arrangements comprise 170 pages of legal text and make up around one third of the Withdrawal Agreement which was formally agreed by the European Council on 25 November 2018.9 The aim of the Northern Ireland backstop is to ensure that, however negotiations on the future UK-EU relationship progress, the open border between Ireland and Northern Ireland will be maintained and the Belfast/Good Friday Agreement respected.

Entry into force and conditions for exiting the backstop

8.The Withdrawal Agreement states that the EU and UK shall use “their best endeavours” to ensure that a future relationship agreement can be agreed and implemented at the end of the transition period, meaning the backstop arrangements never come into effect.10 However, if a future relationship agreement is not in place by the end of the transition period, the backstop arrangements apply automatically.11 The Attorney General’s legal advice states:

Despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part.12

9.Article 1.3 of the backstop, in conjunction with the preamble, sets out the following conditions with which any subsequent UK-EU agreement must be compatible, in order to supersede the backstop:

maintains the necessary conditions for North-South cooperation;
avoids a hard border between Ireland and Northern Ireland, including any physical infrastructure or related checks and controls; and
protects the 1998 Agreement in all its dimensions.13

Under Article 20 of the Withdrawal Agreement, either the UK or EU may call for an end to the backstop, in whole or in part, by notifying the other party and setting out its reasons.14 However, the UK can only exit the backstop via the review mechanism if the subsequent relationship between the UK and EU meets the conditions set out in Article 1 of the Protocol, and the EU agrees that it does.15

10.The Attorney General concluded that these provisions “allow no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling these objectives”.16 If a compatible agreement is not reached, the backstop provisions would apply from 1 January 2021 or, at the very latest following a two-year extension of the transition period, on 1 January 2023.17 Concern has also been expressed that the backstop implies a UK-EU customs union and that this would be taken as a given in the construction of the future UK-EU trading relationship.18

Differing trade arrangements for Great Britain and Northern Ireland

11.The backstop contains important provisions on protecting the rights of individuals (Article 4), the Common Travel Area (Article 5), the Single Electricity Market (Article 11) and North-South cooperation (Article 13). However, it is the arrangements for facilitating the movement of goods which have attracted the greatest political and media attention. Although the backstop arrangements apply to the whole of the UK, creating a single customs territory with the EU, the arrangements apply differently in Great Britain and Northern Ireland.19

12.Under the backstop, the UK as a whole will conform to specific EU legislation on customs, taxation, the environment, labour law, state aid and competition.20 In Northern Ireland, specific additional EU legislation will apply on customs, VAT and excise provisions and certain technical standards relating to goods. The additional provisions have the effect of essentially keeping Northern Ireland within the EU Customs Union and allow goods from Northern Ireland to pass into Ireland without any additional checks or controls.21

13.Goods travelling from Great Britain, which do not have to adhere to these additional EU rules, to Northern Ireland, will be subject to a new declaration process.22 In order to “avoid any additional preventable barriers” within the UK internal market, the Government has committed to ensuring “no divergence in the rules applied in Great Britain and Northern Ireland in areas covered by the Protocol.”23 Goods travelling the other way, from Northern Ireland to Great Britain will continue to have “unfettered” access to the UK market.24

14.On regulatory compliance and enforcement, UK authorities are responsible for implementing EU law applicable under the backstop arrangement for the UK as a whole but, where additional EU law continues to apply in Northern Ireland, EU institutions and bodies will have the same powers as they have currently under the EU Treaties.25

15.Sir Keir Starmer MP, Shadow Secretary of State for Exiting the EU, has said:

We do have concerns about the backstop. There are concerns about the exit arrangements [ … ] there are real, deep concerns. Notwithstanding those concerns, though, we accept, because of our commitment to the Good Friday agreement, that at this stage—two years in, with 30 days to go—a backstop is inevitable.26

It has been reported that Lord Trimble may take legal action against the backstop provisions on the basis that they subvert the Belfast/Good Friday Agreement 1998.27

16.Nigel Dodds MP, deputy leader of the Democratic Unionist Party, articulated his party’s opposition to these provisions in the following terms:

Northern Ireland would be in a different regime—the single market regime, subject to enforcement by the European Commission and to oversight by the European Court of Justice [ … ] On the customs arrangements, it is simply untrue to say that somehow we are all in one big customs union together. Northern Ireland is in the EU customs union [ … ] Quite frankly, that is unacceptable to me as a Unionist.28

17.Illustrating the political divide over these arrangements, four pro-Remain political parties in Northern Ireland (Sinn Féin, Social Democratic and Labour Party, Alliance, Green Party in Northern Ireland) signed a joint statement stating:

We believe that while the Withdrawal Agreement is imperfect, it will mitigate against a bad Brexit which is being imposed against the democratic will of a majority of citizens here who decisively voted to Remain within the European Union. We believe that the ‘backstop’ contained within the Withdrawal Agreement is a vital insurance policy which avoids a hard border on the island of Ireland.29

18.The backstop arrangements succeed in obviating the need for border infrastructure or any related checks or controls on goods travelling across the land border between Ireland and Northern Ireland. The arrangements achieve this by requiring Northern Ireland to maintain a high degree of alignment with EU rules and, as a consequence, raise new barriers to the flow of goods from Great Britain, which is not required to maintain the same level of EU regulatory alignment, to Northern Ireland. Under this model, goods travelling from Great Britain to Northern Ireland would undergo a new declarations process and, in some cases, regulatory compliance checks. This solution sacrifices the integrity of the UK internal market in order to facilitate frictionless cross-border trade between Northern Ireland and Ireland. 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.

Differing approaches: regulatory alignment and specific solutions

19.In the Joint Report of December 2017, the EU and UK first set out how they would achieve their shared aims of avoiding a hard border and protecting North-South cooperation under the Belfast/Good Friday Agreement. Paragraph 49 stated:

The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.30

20.This paragraph sets out the key contention between the UK and EU negotiating positions, the UK favouring “specific solutions” and the EU advocating that either Northern Ireland or the UK as a whole maintains alignment with EU rules. Former Secretary of State for Exiting the EU, Dominic Raab MP, told the Committee on 30 January 2019:

In relation to the Withdrawal Agreement and in particular the backstop arrangements in the Northern Ireland Protocol, it is important to understand the two paradigms [ … ] One is that you avoid what I think we all want to avoid, which is any hard border between the Republic and the North, by a process of high-level legislative and regulatory alignment. That is effectively the approach that the EU has adopted and is reflected in the EU withdrawal agreement. The second paradigm is to say, “We respect and we understand your equities in protecting the single market regulations, but in the modern world, with technology and with decentralised processes, this can be done away from the border”.31

21.The UK has proposed a series of alternative arrangements for how the UK-EU customs and regulatory relationship could be managed without recourse to physical infrastructure at the border in Northern Ireland:

The ‘Future Partnership Paper’ and ‘Northern Ireland and Ireland’ papers of August 2017;32
The ‘Technical Note: temporary customs arrangement’ paper of June 2018;33 and
The ‘Future Relationship’ paper, also known as the Chequers Plan, of July 2018.34

22.The EU has stated that it is willing to consider alternatives for the future UK-EU relationship but the backstop arrangements, based on regulatory alignment, must be included in the Withdrawal Agreement as a “safety net”.35 The first iteration of the Withdrawal Agreement, proposed by the EU in February 2018, advocated Northern Ireland alone sharing a common regulatory area with the EU and remaining in the customs union.36 Under this plan Northern Ireland would be separated from the existing customs union with its biggest market, Great Britain.37 EU statements throughout 2018 make clear its view that these backstop arrangements “simply set out” or “reflect” the commitments made in the Joint Report of December 2017.38 The Prime Minister responded that if implemented, these proposals would “undermine the UK common market” and “threaten the constitutional integrity of the UK” by creating “a customs and regulatory border down the Irish sea.”39 In November 2018, the backstop arrangements were amended creating the single customs territory between the UK and EU.40

23.Following the vote on 29 January 2019, in which the House of Commons passed an amendment requiring the Prime Minister to replace the backstop with alternative arrangements, President Juncker said:

The concept of ‘alternative arrangements’ is not new. It was discussed in the negotiations. It is referred to in the Political Declaration. And in our letter to Prime Minister May, Donald Tusk and I committed to exploring it further as a matter of priority. But a concept is not a plan. It is not an operational solution.41

Michel Barnier, EU Chief Negotiator, said:

We are open to alternative arrangements, as discussed by the House of Commons yesterday. The Protocol on Ireland and the Political Declaration mention them. The letter by Presidents Tusk and Juncker made it a priority in the future negotiations. We are ready to work on them immediately after the signature of the Withdrawal Agreement. But nobody today–on either side–is able to clarify precisely what these alternative arrangements are operationally and how they would effectively achieve the objectives of the backstop. That is why, at this current moment and given the Withdrawal Agreement, we need the backstop as it is.42

24.The Prime Minister has since met with EU leaders and proposed the following options:

First, the backstop could be replaced with alternative arrangements to avoid a hard border between Northern Ireland and Ireland.
Second, there could be a legally-binding time limit to the existing backstop.
Third, there could be a legally-binding unilateral exit clause to that backstop.43

The EU, however, has maintained that the Withdrawal Agreement is “the best and only deal possible” and as such it is “not open for renegotiation.”44

1 Volume 652, European Union (Withdrawal) Act, Hansard, 15 January 2019

2 Tuesday 29 January 2019 Order Paper No.240: Part 1

3 PM speech in Belfast: 5 February 2019, PM’s statement to the House of Commons on Brexit: 12 February 2019

4 Joint statement on behalf of President Juncker and Prime Minister May, 7 February 2019

5 Joint statement on behalf of President Juncker and Prime Minister May, 20 February 2019

6 Joint statement on behalf of President Juncker and Prime Minister May, 20 February 2019

7 Article 50, Treaty on European Union, 2012

8 PM statement to the House of Commons: 26 February 2019

9 The backstop explained, House of Commons Library, 12 December 2018

10 Article 184, Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council, 25 November 2018

11 The backstop explained, House of Commons Library, 12 December 2018, Article 184, Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council, 25 November 2018