There was a fascinating piece in the FT yesterday by Alex Barker and Arthur Beesley entitled “How the Irish border backstop became Brexit’s defining issue“. “The backstop: How a ‘meaningless’ clause now risks derailing Brexit” by Edward Malnick in The Telegraph deserves a read too.

But fascinating though those pieces are, neither directly answers the question about this that has been on my mind for weeks now: why did the UK side agree to the backstop in the first place, only to then seek to undermine it?

Was it done out of ignorance or misunderstanding? Or did the UK agree in good faith, and then change its mind? Or was the agreement for tactical purposes, simply to unblock negotiations, and the UK had no real intention of ever actually agreeing to a backstop?

Let’s start with the original compromise text agreed on 8th December 2017. PDF of the Joint Report here.

49. The United Kingdom remains committed to protecting North – South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. 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.
50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United
Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

In short: the future relationship should prevent there being a hard border in Ireland. If not, the UK will propose solutions to the problem. And failing that, “full alignment” with the rules of the internal market and customs union for North-South cooperation – the backstop (end of paragraph 49). Paragraph 50 is also interesting, proposing a role for the Northern Ireland Assembly.

But remember: the UK agreed to this text.

But then within three days David Davis was undermining it, saying it was not “a legally enforceable thing”. That is not how Barnier or Dublin saw it. It was however May, and not Davis, who had hammered out the text a few days earlier. Did Davis have a different interpretation to May (it would not have been the first time the UK Government were divided Brexit), or this was the intention of the UK side all along? Johnson claimed the text was “meaningless” as well.

But then by the time the detailed draft was released on 28th February 2018 (see page 101 of the PDF here), the backstop had become a “common regulatory area”. The Commission came down on Ireland’s side. The backstop was given legal form.

Since then the issue has been stuck. May has said she could never agree to the backstop this way. The DUP says it would cross their blood red lines. The UK side shows no sign of budging.

But on the other hand – not without reason – the EU side and the Irish government point to the December text, and that the UK agreed to a backstop.

How you interpret how we got to this stage also then offers some idea about how the issue could be solved.

If all of this were a matter of misunderstanding, there might yet be a way forward – perhaps to narrow the circumstances in which a backstop could be needed, or some greater reassurance that a future trade deal would mean there would be no need for a backstop.

If the UK government had had a change of heart between December 2017 and February 2018, then a good starting point would be to acknowledge this. Within the space of three months the UK side went from agreeing to the principle of a backstop to then point blank refusing it, but has at no point shown any contrition, or offered any explanation. “We agreed to a backstop, but we should not have done that – we need another way to avoid a border in Ireland” would go a long way, but words to that effect have not been forthcoming.

Or – worst of all – if all of this was just a cynical tactical play to unblock the negotiations back in December 2017 and the UK even then had no intention of actually doing what it agreed to, the way forward looks bleak. If the UK digs in and refuses any backstop, and having now invested 10 months of negotiation time with it as a central element of the EU position, it looks like No Deal is around the corner. Neither side will cede.

There would of course be ways out – a softer Brexit where the UK stays in the EU’s internal market and Customs Union would mean there would be no hard border in Ireland, and no backstop either. But that is miles away from Theresa May’s stated positions on all the other Brexit issues. But there are just 21 weeks of the Article 50 period to go – not much time for solutions if the whole backstop idea cannot be made to work.

 

[UPDATE 31.8.2018, 2330]

What – based on this tweet – I thought was a simple error, actually turns into an interesting caveat. The first draft of this blog post wrongly used the paragraphs of Barnier’s report of progress to the Council, rather than the Joint Report text that is now cited above. The PDF of the full Barnier text is here. These are the important paragraphs:

Whilst the United Kingdom remains committed to protecting and supporting continued North – South cooperation across the full range of contexts and frameworks, including after withdrawal, the common understanding provides that the United Kingdom aims to achieve this protection and the avoidance of a hard border through the overall EU – United Kingdom relationship. This intention seems hard to reconcile with the United Kingdom’s communicated decision to leave the internal market and the Customs Union.

Should these objectives not be met through the future relationship, the United Kingdom committed to proposing a specific solution to address the unique circumstances of the island of Ireland for agreement with the EU. The EU will need to ensure that any such solution does not affect Ireland’s place in the internal market, and consequently the integrity of the internal market.

In the absence of agreed solutions, the United Kingdom committed to maintaining 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 Good Friday (Belfast) Agreement. In this context, implementation and oversight mechanisms for the specific arrangements to be found will be established to safeguard the integrity of the internal market.

There is no mention of the Assembly in relation to the backstop, as there is in paragraph 50 above. And two separate lines are added on the integrity of the internal market. Interesting emphasis. However the crux of this – the backstop – is pretty much word for word identical in both texts.

3 Comments

  1. Brenda Steele

    There is good reason why the UK is known as “Perfidious Albion”.

    In my opinion, (if not all) had no intention of keeping to the agreement. Many of the Brexiteers have clung to the notion that, if only they hold out long enough, they would get their cake with cherries, raisins, etc. They expected to bounce the EU into promising that great FTA deal they were promising during the campaign – so no need for a backstop.

    It never occurred to them that they were asking too much. Arrogance, ignorance, whatever you might want to call it.

  2. No great mystery really, the UK initially agreed to the backstop as a result of the discreetly competent technical negotiations between the UK’s senior Brexit civil servant Olly Robbins and the EU Commission’s Sabine Weyand (Barnier’s deputy) out of which arose a withdrawal agreement head-of-terms in order to generate momentum. Although the UK government believed that it could fudge & smudge the final version over the finish line, Northern Ireland’s DUP nutters and the Tories’ ultra-crazies have very firmly put paid to this notion and the UK government is now effectively snookered, unable to retreat from the backstop as it would mean no Withdrawal Agreement and unable to move forward with the backstop as it would cause May’s and her government’s political destruction. Either way, chaos waits at the end of the road.

  3. See also European Council guidelines, 29 April 2017, copied here:

    “11. The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.”

    https://www.consilium.europa.eu/en/press/press-releases/2017/04/29/euco-brexit-guidelines/

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