What has Theresa May said in her House of Commons speech about the backstop?
The UK prime minister has identified the Irish border backstop as they key issue causing problems in getting the House of Commons to approve the withdrawal agreement she has negotiated with the EU. The backstop is the guarantee in the treaty that no matter what the outcome of future trade talks between the UK and EU, there will be no hard border on the island of Ireland. This would be achieved by the UK remaining in a customs union with the EU, after a transition period following Brexit, if at that stage a trade deal had not been completed between the two. This would ensure that no Irish border checks are needed. Mrs May has said she will go back to the other EU leaders to seek "reassurances" on this, but it is not clear what they might be. Many MPs have said that the backstop could see the UK " trapped" in a customs union with the EU in the long term – so she has indicated that she will look for commitments that the EU side also sees the backstop as temporary. However Irish sources believe any limited assurances to the UK which might be on offer will not be anything like enough to get the deal supported in the House of Commons. Risks of a failure to reach a withdrawal deal have grown and Taoiseach Leo Varadkar has said planning for a no-deal Brexit will be stepped up.
Why has the backstop become such as issue?
The backstop is seen as an insurance policy – and both sides have said that they don’t want to use it. However, it has become increasingly clear that it could well end up being triggered because of the type of trade deal that the UK has said it wants in the long term. Under the withdrawal treaty, a standstill transition period would start after the UK leaves next March, lasting for at least two years and up to four years.
The question is whether a trade deal could be done within the transition period, and if it would be sufficient to make border checks in Ireland, as an EU frontier, unnecessary. As the UK has said it wants to leave the EU trading bloc – the customs union and the single market – this looks unlikely. So under the agreement, the UK would then be obliged to remain in a customs union with the EU, to avoid customs checks at the Irish border, or in the Irish Sea.
Some regulatory checks would be needed on goods crossing between Britain and Northern Ireland, however, and the North would have to follow some EU rules, which has caused the DUP to oppose the deal. It is not clear how the backstop, once entered, could be ended.
In her speech to the Commons, Theresa May outlined the difficulties of the other courses being put forward for future trading arrangements and challenged the opponents of her deal to outline clearly a workable alternative and accept its consequences. For example those wanting to stay in the customs union and single market would have to accept that this would involve budget contributions and free movement of people, while those calling for a no-deal exit must recognise the economic damage this would bring.
What can the EU leaders give Theresa May by way of reassurances?
It is not clear what she hopes to achieve in her talks ahead of this week’s EU Summit. Referring to the backstop and its potentially indefinite nature, Mrs May told the Commons that the other leaders “ are open to discussions with us on this particular issue.” She said would seek further assurances about the “ temporary aspect” of the backstop and how the UK might exit it.
It is possible that the other EU leaders could agree to strengthen some language in the political declaration – the non-binding statement on how both sides want the future relationship to evolve – making clear that both sides will make every effort to avoid the backstop, or ensure it is not permanent.
But whatever language is agreed, the EU side will not shift from the terms in the withdrawal treaty itself, which says that the backstop will stay in place “ unless and until” some other arrangement is agreed to avoid a hard border. This is the essence of the backstop – that the UK cannot exit unilaterally and that it offers a permanent guarantee. There are mechanisms in the withdrawal agreement to oversee this – a joint committee and an arbitration process – but they do not provide a way for the UK to exit unilaterally. This is what Taoiseach Leo Varadkar means when he says the the Brexit deal “is the only one on the table.”
The worries in the UK – that the backstop could be forever – is now the crunch issue in the talks, with obvious risks for Anglo-Irish relations. There is no obvious way out of this. Technology and advanced procedures can reduce the need for border checks between two trading blocs, but not eliminate them or control potential smuggling.
Why is this such a big issue in the UK?
Brexit was sold partly on the basis of the UK heading off from the EU’s influence and negotiating new trade deals with third countries like the US. Remaining “stuck” in a customs union would mean continuing to follow EU rules in some areas, while limiting the ability to do new trade deals. Meanwhile, the North and Britain could remain separate in some areas of regulation and rules set down by the single market, a divergence which would grow over time. While most economists say that the economic damage for the UK would be less if it stayed in the EU trading bloc fully, this would require it to follow EU rules including, crucially, on freedom of movement. Mrs May has indicated that gaining control of immigration is a “red line” issue for her. Meanwhile as she tries to sort it all out, it could be the New Year before the Commons is asked to vote again, extending and deepending the huge uncertainty which Brexit is now causing . Risks of a no-deal are growing though all still depends on the hugely uncertain political outlook in London.
