8 March 2019

Reports of ongoing UK-EU renegotiations present a gloomy picture, with little progress yet to be seen. The Attorney General Geoffrey Cox has reportedly cancelled his trip to Brussels today, which was supposed to resume negotiations. But the government is still seeking legal changes to the existing Irish backstop, and intends to bring back a revised agreement ahead of MPs’ second ‘meaningful vote’ next Tuesday.

For many MPs who voted the deal down in January, the acid test will be whether the Attorney General can revise his previous legal advice that the backstop could “endure indefinitely” in international law. Reports yesterday revealed two proposals the Attorney General has made in negotiations with the EU to give him room to shift the legal advice: changes to the arbitration mechanism in the backstop review clause; and the entry into force of a narrower “mini-backstop” if UK-EU talks break down. However, the European Commission negotiating team is said to have rejected both plans at this stage.

Strengthened arbitration mechanism

Cox has reportedly called for an arbitration panel to assess whether both sides are taking reasonable measures to seek “alternative arrangements” to the backstop in the future. The existing backstop review mechanism is already subject to arbitration – if the UK believes the EU isn’t living up to good faith commitments to consider alternatives, it would be able to appeal to arbitration. So what is Cox’s new proposal intended to achieve? In short, it seems he is attempting to widen the scope of scenarios which could see the UK begin arbitration proceedings to terminate the backstop – as opposed to requiring a joint UK-EU decision to end it. In the House of Commons yesterday, he stressed:

Although the arbitration system applies to the Protocol, the question that one asks the arbitrator is at the heart of the effectiveness of any arbitration…The question about when the Protocol would end is likely to be determinative of whether the mechanism is effective.

Currently, an arbitration panel could be asked to decide whether either party was demonstrating bad faith or a breach of the duty to use “best endeavours” to examine alternative proposals for protecting the Irish border, North-South cooperation and the peace process. However, if no agreement can be found despite both sides acting in good faith, the backstop would endure and neither party could be challenged.

In his legal advice last year, Cox had highlighted that changing this would make an important difference:

The position would have been different under a clause allowing for mutual termination once it was clear that negotiations had irretrievably broken down…Such a clause would have provided the UK with reasonable assurance that it could terminate the Protocol once it had become clear that there was no reasonable prospect of agreement and that the Protocol had now assumed the guise of a permanent arrangement.

It is likely that he is now pursuing something along these lines in negotiations with the EU, which could pave the way for an arbitration panel to decide on whether there was no longer any “reasonable prospect” of an agreement on alternative arrangements. One EU diplomat has argued Cox’s proposals would allow the UK the right to say it had acted in good faith, but efforts to replace the backstop had failed and it could therefore be terminated.

Some critics of the government’s deal might be persuaded by such a change. For instance, former Brexit Secretary Dominic Raab last week called for changes to include “the ability to exit the backstop, whether through a sunset or a timeframe or a mechanism.” However, it is not clear this would go far enough for others: notably, the DUP’s Brexit spokesperson Sammy Wilson told the Northern Ireland Affairs Committee this week that “an enhanced arbitration mechanism to bring about an end to the backstop” was “certainly not a mechanism that we would accept.”

The “mini-backstop”

But Cox has also pursued a second plan in negotiations, dubbed by the EU as a “mini-backstop.” Under this proposal, in the event UK-EU talks on the future relationship breakdown, the backstop would be replaced by a paired-back arrangement that only covered the necessary areas to ensure an open border. Without full details on what the government is proposing, it is difficult to know which aspects of the existing backstop this would remove – but it might allow for the UK to exit the joint customs territory, and rely on electronic systems which push customs procedures and checks away from the border. It might also mean the UK (in particular, Northern Ireland), applying a more limited range of EU rules and regulations, such as only those with effect (such as checks and controls) at the border.

It could therefore mean the removal of some of the most contentious elements of the existing backstop for Brexiteers. It is not clear whether other important areas of cooperation –such as the all-Ireland Single Electricity Market – would fall under this minimal backstop proposal.

Will the EU demonstrate it will consider other ways to achieve joint objectives on Northern Ireland?

The EU has reportedly rejected both ideas. Some EU diplomats have suggested proposals to change the arbitration mechanism would amount to introducing new notions of “reasonableness” to lower the bar for leaving the backstop. Indeed, it would mark a significant change in the EU’s position to allow the backstop to be terminated if talks for a future relationship break down – it would in effect negate the principle that the backstop must apply “unless and until” it can be replaced by another deal. Yet, it is worth recalling EU officials have previously suggested that the backstop is “an insurance policy, but that doesn’t mean it’s right up to being tsunami-proof.” If in ten years the UK and EU fail to reach any agreement on a future relationship, will the backstop remain politically stable?

The EU have also argued that expanding arbitration in this way would give an independent panel a say over the functioning of EU law and the EU single market. However, it is certainly not the case that the whole backstop is a matter of EU law.

Equally, accepting the “mini-backstop” would mean the EU agreeing some aspects of the existing arrangements are unnecessary to meet both sides’ commitments on Northern Ireland, and another operational solution is available now – arguments which they have repeatedly rejected.

But UK proposals for a stripped-back backstop are an important stage in renegotiations (though it suggests the government have failed sufficiently to test the limits of the EU’s negotiating positions at earlier stages). It goes to the heart of the UK-EU tension over the Irish question: Cox’s proposal highlights the UK government’s perspective that avoiding a hard border means not introducing infrastructure or new controls at the land border. Ireland, however, argues that protecting existing North-South arrangements and cooperation extends further than the question of the border, and any backstop should essentially mean no new frictions to any North-South interaction.

Ireland and the EU have a maximalist approach to the 2017 December Joint Report commitment to avoiding a hard border “including physical infrastructure or related checks and controls” – while the “mini-backstop” would mean a narrower interpretation of this, limited to the border area itself.

The “mini-backstop” may be too limited an arrangement to meet both sides’ commitments on Northern Ireland – and certainly it is very late in the day for the government to introduce the idea, having failed at any stage to put forward their interpretation of the December commitments. But these renegotiations do need to test EU commitments that the existing backstop is not the only way of protecting an open border and North-South relations in the future – after all, it has agreed in the current deal to seriously examine other possibilities.

The recent agreement to establish a UK-EU workstream to develop “alternative arrangements” is a step in the right direction. More can also be done to respond to other Unionist concerns. For instance, the UK and EU should agree in the Withdrawal Agreement that the UK will seek the approval of the Northern Ireland institutions before taking decisions in the Joint Committee on the operation of the backstop. This would act as an international law lock on UK domestic commitments, in a way the EU has done previously for Denmark’s ratification of the Maastrict treaty.

Ultimately, unless the EU can demonstrate it will seriously consider alternatives to the current backstop, there will be little new to ease the concerns of MPs who believe it acts as a “trap” – despite Barnier’s promise that is not its intention.