The Irish backstop (formally called the "Northern Ireland Protocol") was a proposed protocol to a draft Brexit withdrawal agreement that never came into force. It was developed by the May government and the European Commission in December 2017 and finalised in November 2018, and aimed to prevent an evident border (one with customs controls) between the Republic of Ireland and Northern Ireland after Brexit.
The backstop would have required keeping Northern Ireland in some aspects of the Single Market until an alternative arrangement was agreed between the EU and the UK. The proposal also provided for the UK as a whole to have a common customs territory with the EU, until a solution was delivered to avoid the need for customs controls within the UK (between Northern Ireland and Great Britain). The 'backstop' element was that the arrangement would have continued to apply potentially indefinitely unless the UK and the EU were both to agree on a different arrangement, for example on a trade agreement between UK and EU at the end of the transition period.
The Irish government and Northern Irish nationalists supported the protocol, whereas Unionists (who reject any difference in treatment as between Northern Ireland and Great Britain) opposed it. By early 2019, the Westminster Parliament had voted three times against ratifying the Withdrawal Agreement and thus also rejected the backstop. The decision of the Democratic Unionist Party (which had a confidence and supply arrangement to support May's minority government) to vote against the proposal was decisive in its defeat.
In October 2019, the new Johnson government renegotiated the draft, replacing the backstop. In the new protocol, the whole of the UK was to come out of the EU Customs Union as a single customs territory. Northern Ireland was to be included in any future UK trade deals, but have no tariffs or restrictions on goods crossing the border in Ireland in either direction. This in effect created a de facto customs border with Great Britain the "Irish Sea border". There is also a unilateral exit mechanism by which the Northern Ireland Assembly can choose to leave the protocol via a simple majority vote. This new protocol has been dubbed by some as "Chequers for Northern Ireland", due to its similarity with the UK-wide Chequers future relationship plan proposed by Theresa May, which had previously been rejected by the EU and criticised by Johnson.
Context
Political context The Northern Irish border will be the only land border between the European Union and the United Kingdom after Brexit. Its length, 300 crossings and lack of significant geographic barriers make it difficult to control.
In February 1923, shortly after the creation of the Irish Free State, a Common Travel Area (CTA) consisting of the newly founded state and the United Kingdom was informally agreed, in which each side would enforce the other's external immigration decisions, thus avoiding the need for immigration controls between the two countries. This tradition has been continued so that () Irish citizens are entitled to settle, work and vote in the UK, with British citizens in Ireland having similar rights.
The Northern Ireland conflict broke out in 1969 and involved the deployment of the British army under Operation Banner carrying out security checks, closing over 100 border crossings and constructing observation infrastructure across Northern Ireland; these measures began to be reverted following IRA ceasefires in 1994 and 1997.Albert, Cornelia (2009). The Peacebuilding Elements of the Belfast Agreement and the Transformation of the Northern Ireland Conflict. Peter Lang (publisher), p. 234;
The completion of the European Single Market in 1992 (initiated by European Commissioner Lord Cockfield) and the Good Friday Agreement (brokered by Irish-American Senator Mitchell) in 1998 were seen as making it possible to dismantle what had previously been extensive border infrastructure between Northern Ireland and the Republic of Ireland.
On 29 March 2017, Prime Minister Theresa May commenced the two-year Brexit negotiation process by serving notice under Article 50 of the EU Treaty. In response, the remaining EU countries (EU27) published their "phased" negotiation strategy which postponed any negotiations on the future relationship with the UK (the non-binding "Political Declaration"), until a binding withdrawal agreement had been concluded, covering: Agreement on the so-called "divorce bill"; Agreement on rights of EU citizens living in the UK; Agreement on the border between Northern Ireland and the Republic within the withdrawal phase.
Economic context
The Republic of Ireland has, after Luxembourg, the second-highest gross domestic product per capita in the EU, thanks to a favorable corporate tax system, and its membership of the European Single Market. Approximately 85% of Irish global freight exports pass through ports in the United Kingdom, about half of which are destined to the UK, while half continue to the EU via Dover and Calais. Using the UK as a "land bridge" is rapid (taking 10.5 hours for the route Dublin-Holyhead-Dover-Calais) but could be compromised by customs checks in Wales and Calais in a no-deal Brexit. This is because, in the absence of a trade agreement, the goods trade relationship between the UK and the EU (including the Republic) would revert to World Trade Organization (WTO) membership terms. These stipulate that the same customs tariffs and checks must be indiscriminately applied between all WTO members (Most Favoured Nation criterion), unless specific members have a trade agreement. then see Non-discrimination and national treatment. This principle would also apply to trade across the land border in Ireland in the absence of a trade agreement.
History of the backstop clause
2016: Proposal to harmonise external Irish border controls with UK In Irish government meetings before the Brexit referendum in 2016, the border was identified as an important issue in the event of a vote to leave. From the time the referendum result was clear, the Irish government told other EU countries that (in the words of The Guardian) "the [open] border was not just about protecting the single market, it was about peace." Prime Minister Theresa May said in October 2016 that there would be "no return to the borders of the past". Initially there were bilateral talks between Dublin and London to devise technical solutions to border issues. In October 2016, The Guardian reported that British proposals to avoid a hard border (by having UK-compatible immigration controls introduced at Republic of Ireland ports and airports) had received "signals [of] support" by Enda Kenny's government. However, in 2017 a spokesperson for the new Irish government, under Leo Varadkar, stated that these reports had been "misinformed" and that there was "no question of UK officials acting as border agents in Ireland".
2017: Proposal to develop a Northern-Ireland specific backstop On 7 September 2017, the European Commission with its chief negotiator Michel Barnier published guiding principles for the dialogue on Ireland / Northern Ireland which reiterated and expanded the principles given in 29 April guidelines, in particular the protection of the Good Friday Agreement and the continuation of the Common Travel Area. On 9 September 2017, the EU Commission published several negotiating papers, including "Guiding Principles on the Dialogue for Ireland/Northern Ireland". In this, the EU declares that it is the responsibility of the UK to propose solutions for the post-Brexit Irish border. The paper envisages that a "unique" solution would be permissible here; in other words, any such exceptional Irish solution should not be seen as a template for post-Brexit relationships with the other EU members on border and customs control matters, for example ETIAS.
Negotiations between officials led to a draft agreement which was expected to be finalised at a meeting between Jean-Claude Juncker and Theresa May in Brussels on 4 December 2017. There was progress on the financial settlement and citizens' rights, but the meeting was abandoned after Northern Ireland's Democratic Unionist Party objected to arrangements for the Irish border.
2017: Proposal to include whole of UK into backstop Talks resumed on the following days, leading to publication on 8 December of a joint report setting out the commitments to be reflected in the Withdrawal Agreement. Both the UK and the EU negotiating teams stated their preference to avoid a 'hard border' and proposed an agreed draft for a Withdrawal Agreement that included a backstop:
Furthermore, paragraph 50 stressed that there would be no new controls on goods and services moving from Northern Ireland to Great Britain. Subsequently, in 2018, the EU version of the final withdrawal agreement omitted paragraph 50 on the basis that it is an internal matter for the UK. This final withdrawal agreement of 2018 was initially approved by the British Prime Minister (Theresa May), but the DUP (on whose confidence-and-supply support the government's minority administration depended) vetoed it in the parliamentary vote of January 2019.UK to warn of Brexit backstop’s threat to Irish peace treaty, Tom McTague, Politico, 27 January 2019.
Backstop within November 2018 withdrawal draft On 14 November 2018, following a five-hour Cabinet meeting, Prime Minister May announced that her Cabinet approved a draft withdrawal agreement with the EU. On the same day the government published Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, stating that negotiations on the future UK-EU relationship were ongoing and that the (binding) Withdrawal Agreement would not be signed without an agreed (non-binding) Political Declaration on the future relationship "on the basis that nothing is agreed until everything is agreed".
Objectives Article 1(3) of the Northern Ireland protocol states its objectives:
The concept of a "hard border" is defined by 'physical infrastructure and checks', as noted in the protocol's preamble on page 303:
The concept of "protecting" the 1998 Agreement is not further defined or referred to in the Northern Ireland Protocol or in the Withdrawal Agreement as a whole.
Means The protocol's stated means to achieve the objectives are specified (with reference to the European Union's internal market and the customs union) three paragraphs later on the same page:
To avoid a border between Northern Ireland and the rest of the UK, article 6 of the Northern Ireland protocol proposes that from the end of the transition phase (on 31 December 2020), the UK and the EU customs territories will operate as one until the parties agree jointly that a mutually satisfactory alternative arrangement has been reached. The single customs territory between the United Kingdom and the EU does not cover fish products: as a result fish transported from Great Britain to Northern Ireland would be subject to EU tariffs unless a separate agreement on fisheries were reached.
Northern Ireland will per article 6(2) be bound by the entire EU Customs Code, and shall be considered part of the EU customs territory per article 15(1). Furthermore, Northern Ireland will maintain "regulatory alignment" with the EU Single Market, again until a mutually satisfactory alternative arrangement can be put in place for Single Market regulations as well as Customs and Excise.Brexit draft agreement: What has been agreed on Northern Ireland to avoid a hard border Belfast Telegraph, 14 November 2018.European Commission - Fact Sheet: Protocol on Ireland and Northern Ireland European Commission, 14 November 2018.
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