In her desperate efforts to head off defeat in Parliament on her Brexit deal, Theresa May has hinted strongly that MPs can be given a decisive choice at the end of 2020: whether to trigger the “backstop” to prevent a hard border in Ireland, or opt for an extended transition period.
Brexiters and patriotic pro-Europeans alike loath the backstop. It will keep us in a bare-bones customs union with the EU – perhaps indefinitely, according to the government’s legal advice. That makes it hard to cut trade deals. We will also have to follow plenty of EU laws. And there will still be regulatory checks for goods moving between Northern Ireland and Great Britain.
But being given control over a choice between the backstop and more transition seems unlikely to win over many hard-line Brexiters. They hate the “backstop” for the reasons given above. But they also hate the transition agreement because it means continued free movement of EU citizens, continued UK budget contributions to the EU, and obedience to all EU rules without any decision-making power in Brussels.
Perhaps more importantly, there are clear limits to what such a parliamentary “lock” might imply.
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There is certainly a choice to be made at the end of 2020. Very few seasoned observers think it will be possible to reach any final agreement on UK-EU trade relations in that timescale. The UK government will have to decide how to proceed: to carry on negotiating in an extended transition period, or to carry on negotiating while the backstop comes into effect. But whatever the choice, it will have to be agreed by the other 27 EU countries. The UK parliament can merely approve or reject the government’s choice.
There are two major snags. First, if the UK and EU cannot agree on the choice, then the backstop will automatically come into effect in January 2021. Second, and more importantly, opting for an extended transition period is no guarantee that the backstop will never come into effect. It will remain applicable automatically if at the end of the extended transition period there is still no UK-EU agreement which obviates the need for new border controls between Northern Ireland and the Republic.
May was wise enough to admit in her interview on the BBC Today programme that there can be no withdrawal deal with the EU that does not include a backstop.
May was also quite correct to say “there are pros and cons to both sides”. In the backstop agreement “we have no financial obligations and no free movement”. In the extended transition period, not only would free movement continue, but “there would be concerns that (the other EU countries) would require more money to be paid.”
If the backstop is triggered, there is no unilateral right for the UK to withdraw from it. Both sides must agree that it is not necessary in order to preserve the invisible inner-Irish border, thanks to an alternative and comprehensive free trade arrangement. At the end of the day, both sides do agree – thank goodness – that the Irish peace process cannot be put at jeopardy by the return of a hard border. But precisely because of that consensus, the Irish border is the Achilles heel of the entire Brexit process. A hard Brexit and the Good Friday Agreement are not compatible. No amount of parliamentary manoeuvring can hide that uncomfortable reality.
This article was updated shortly after publication to remove repetition.
Edited by Luke Lythgoe
To bolster the legal case for the backstop and the binding character of an international treaty character of the Good Friday Agreement there is the result of to-day’s poll that over 60% of the Northern Ireland population support the backstop to ensure a continuing customs union with the EU and the Republic of Ireland, So much for the bluster of the DUP . It should be further noted that the Treaty of Lisbon and Article 50 were the subject of a Second Referendum in Ireland and this is not perceived, in retrospect at least, as a betrayal of democracy. Jingoism and imperial pretensions have distorted the debate and the ERG must stop peddling untruths that stoke up false claims and unrealistic aspirations.