Backstop Blues

My last Brexit post on 8 July covering PM Theresa May’s Chequers proposal has rather been overtaken by events.

At the time of writing cabinet brexiteers appeared be supporting the proposal, but within 24 hours Boris Johnson and David Davis had resigned from the Government, doubting that it would deliver Brexit, and citing concerns that such a starting point was bound to lead to further concessions.

As I pointed out, the proposal as originally set out would not have involved staying in either the EU Single Market nor a Customs Union, and as such did not deserve to be called BRINO. However since July the proposal seems to have morphed into something even worse than that, putting the UK into a kind of zombie state, forever stuck in a twilight zone between membership and freedom, subject to EU rules but having no say in their making, paying into the EU budget and unable to make independent trade deals. And unable to leave without the EUs permission. Boris Johnson has recently called this the biggest failure of statecraft since Suez.

The reason for this is only partly due to the deficiencies of the original proposal, with its Heath Robinson mechanism for the UK to collect EU tariffs and then maybe refund them at a later date. The main reason the PMs position has degenerated so quickly into such a morass of contradictions is because of the so-called Irish Backstop.

It was a shrewd move by the EU to tie the UK in knots over the Irish border. What was one of the EUs biggest problems (how to collect its tariffs with no hard border) was magically transformed into our biggest problem (how to stop them putting up a hard border to collect their tarrifs).

Lawyers for Britain has a lengthy analysis of the legal implications of the backstop here. I will not go over that ground again. I want to take a step back and ask how the UK got into the position of accepting the idea of the Backstop, and what it can do get out of it.

The Backstop originated in December 2017 as part of the Phase 1 Agreement, which says:

“The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.”

That commitment is said to arise under the 1998 Belfast agreement (commonly known as the Good Friday agreement). But you will peruse that document in vain trying to find it.  (The closest thing is the British Government’s commitment to “as early a return as possible to normal security arrangements” including “the removal of security installations” throughout NI. That would cover structures such as army watchtowers. It says nothing about customs posts or passport control at the border).

But a soft border has indeed come to pass, and everyone seems to agree it should be maintained, so let’s leave aside whether it is part of the 1998 agreement or not.

The crux is in para 49-51 of the Phase 1 agreement in which the UK agrees that “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 “support … the protection of the 1998 agreement”.

Theresa May signed up to this in order to get the EU to move on to talks about a trade deal, apparently not noticing the trap that had been set: The UK is made responsible not just for not putting up its own hard border, but for “avoiding” one on the other side as well. The UK has accepted responsibility for the Irish side of the border.

And why would the Irish put up a hard border? From whence comes this mysterious force compelling a border that no one wants? No one wants to say. But the answer is clear. EU law requires member states to collect tariffs and check goods for compliance with EU standards at external borders. EU law will require Ireland to put up a hard border if post-Brexit standards are not aligned. (The UK will be under no obligation to put up a border. As an independent state we will be able to police – or not police – our borders however we like).

Except this is bluff. The EU knows it can’t force Ireland to put up a border. What if it tried and Ireland refused? Would it fine Ireland? Expel them from the EU? Or maybe Ireland would decide to leave? Indeed the EU has assured Ireland that there will be no hard border even if the UK leaves with no deal on 29 March 2019. But TM has unaccountably allowed her entire Brexit strategy to be hamstrung by this non-issue. Perhaps she feels that having agreed the Backstop last year she can’t resile from it?

It was a shrewd move by the EU to tie the UK in knots over the Irish border. What was one of the EUs biggest problems (how to collect its tariffs with no hard border) was magically transformed into our biggest problem (how to stop them putting up a hard border to collect their tarrifs). Because our politicians were stupid enough to agree that it was our problem. And now that it is our problem of course no solution will ever be good enough. By rejecting every technological solution we propose to their problem the EU can keep us in thrall forever.

But legally, the Backstop agreed in 2017 is not binding. Nothing is agreed until everything is agreed.

The UK just needs to say that since all three parties have said there will be no hard border in any circumstances there is no need for a backstop and it is off the table forthwith. Sorry chaps. And forget that Chequers nonsense, its Canada+++ or no deal.

Now, that border that is suddenly your problem again, would you like it with tariffs or without?

This is easily doable. But it is now clear TM does not have the brains or the backbone to do it. A new PM will be needed, as soon as possible, please.

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