5 February 2019

Open Europe has today published a new briefing, “Options for renegotiating the backstop.

Prime Minister Theresa May has set out her intention to renegotiate the Protocol on Ireland/Northern Ireland in the UK-EU Withdrawal Agreement – more commonly known as the Irish backstop. This comes after MPs voted in favour of an amendment by Conservative MP Sir Graham Brady, which instructed her to return to the EU to seek “alternative arrangements” to the existing backstop. However, she has stated that she is not looking to remove the backstop entirely.

May has set out three options for legal changes to the current functioning of the backstop:

  • Replace the backstop with an alternative plan
  • Establish a time limit to the backstop
  • Introduce a unilateral exit mechanism

These are ambitious demands, and it is unlikely that she will fully secure these in negotiations with the EU. However, they correctly identify MPs’ primary concerns about the functioning of the backstop. Notably, that the UK could legally be bound to remain in a customs union with the EU indefinitely, and that the EU has little incentive to explore replacing the backstop with any arrangement other than a permanent customs union.

Comments from the EU’s deputy chief negotiator, Sabine Weyand, that a customs union would be “require[d]” as the basis of the future bilateral relationship, and that technological solutions to the border “don’t exist”, have raised concerns among some in the UK that the EU does not intend to explore other options to manage the Irish border in the future. There would be a question of good faith if the EU enters into a commitment in the Withdrawal Agreement to consider “alternative arrangements” to avoid a hard border on the island of Ireland, but believes the only feasible future deal is a permanent version of the backstop, or a permanent customs union which did not afford the UK control over trade policy (the UK-EU Political Declaration makes clear that under the future relationship the UK will be able to develop an independent trade policy).

The UK should pursue proposals that meet the objectives of the Prime Minister’s three key options, but which are potentially negotiable with the EU.

Open Europe proposes the following framework of commitments on the backstop:

  • The UK and EU should agree that the backstop, if applied, would create a common customs territory, with Northern Ireland-specific regulatory arrangements. This would mean accepting the substantive provisions of the existing backstop.
  • Both sides should agree a binding roadmap for scoping, testing and implementing other alternative arrangements that meet the objectives of avoiding a hard border. This should clearly set out the objective criteria an alternative arrangement would need to fulfil to ensure safe and effective functioning of the border – it could establish, for instance, maximum acceptable levels of smuggling to meet border security requirements; parameters around randomised spot checks; criteria and limits to on-site auditing of businesses, etc.  Independent authorities would then determine whether the necessary criteria have been met. The roadmap should also include binding commitments to establish and fund a working group to identify facilitative solutions; and a clear timeline for test-running new IT and information sharing systems.
  • The UK and EU should conclude a protocol with legally binding status which sets out that the backstop cannot be a permanent arrangement as a matter of EU law, as Article 50 cannot form the legal basis of a permanent relationship. The protocol can also state both sides’ recognition that it remains open for a party to challenge the backstop through arbitration if it is considered not to be a temporary arrangement.
  • Both sides should commit to the working assumption that the temporary backstop should not be in place beyond 2029, unless there is joint agreement to extend. This would limit the duration of the backstop to 6-8 years, depending on whether an extended implementation period was sought. The backstop should be considered an “interim” arrangement (given its explicitly temporary nature and both sides’ intention to replace it with a future relationship), and the UK and EU should reference the provision in international law (GATT Article XXIV) that interim arrangements should not last longer than 10 years, except in exceptional circumstances.
  • The UK and EU should agree in the Withdrawal Agreement that the UK will seek the approval of the Northern Ireland institutions before taking a decision in the Joint Committee on the functioning of the backstop. This is a clarification of how the UK side of the Joint Committee will work and so will not affect the balance of powers (which would require mutual agreement between the UK and EU sides). However, it would fulfil the condition of Paragraph 50 of the December 2017 Joint Report that “no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom” without the agreement of the Northern Ireland institutions.

These measures should not be viewed as mutually exclusive. Instead, used in combination, they would create a framework committing both parties to transition away from the existing backstop and towards a sustainable, long-term relationship. They should also be supported by unilateral measures from the UK, setting out its position on the backstop. Following these the Attorney General should consent to publishing updated advice setting out the legal position on the backstop.

None of the commitments listed above would contradict the terms of the Withdrawal Agreement, and therefore merit serious consideration by the EU. They would also remain consistent with public statements by European officials that the backstop is an uncomfortable and undesirable long-term arrangement for the EU and member states. However, these would offer stronger assurances than existing “best endeavours” commitments to replace the backstop.

As Open Europe has argued previously, some degree of special or hybrid arrangements are arguably inevitable for Northern Ireland under future UK-EU relations. However, the backstop as it currently stands tilts these arrangements too firmly towards the EU. The backstop also risks setting the Northern Ireland-Ireland relationship at UK-EU level, bypassing the bilateral and other more bottom-up aspects set out in the Belfast / Good Friday Agreement. The additional commitments that the Prime Minister is seeking aim to correct this. They would build trust that the EU will seriously consider alternative proposals to Northern Ireland alone remaining permanently in its regulatory and governance regime – and consequently outside the UK’s – in key areas.

The UK should also reserve its right under the Vienna Convention on the Law of Treaties to leave the backstop if the EU does not meet its commitments to use “best endeavours” to find alternative arrangements for the border. This would only be pursued as a last resort and is not a decision the UK should take lightly. Agreeing a framework of commitments in parallel would also offer both sides a clearer understanding of what “best endeavours” amount to in practice. The UK would only be justified in pursuing its right to exit if these joint commitments had been breached.

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