Double backstop, hybrid or backstop to the backstop... deal will be hard to swallow
‘The question remains: if Great Britain walks away from its customs union, does it leave Northern Ireland behind in theirs?’
When the Cabinet meets to discuss whether or not to endorse the text of a putative Brexit divorce deal, one question will be uppermost: will the UK be free to leave the clutches of the Irish backstop, or not?
This is a pressing question because, unless the UK extends the 21-month transition period, there is a strong chance that in December 2020 the backstop to guarantee no return to a hard border in Ireland will kick in.
In that event, the deal will leave Northern Ireland in full customs union and regulatory alignment with the EU, and Great Britain in a separate “bare bones” customs union with the EU.
This hybrid “all-uk solution” will nominally make good on Theresa May’s aim to not leave Northern Ireland in the customs territory of a foreign power, but it also raises the real risk of the UK being trapped in a never-ending customs union, with severely limited ability to have an independent trade policy.
This is because the EU is demanding that the backstop should persist “unless and until” a trade deal removes the need for it. With both Mrs May’s ideas for delivering this outcome dismissed as “unicorns”, that prospect looks discouragingly remote.
Even worse, the deal’s critics in Cabinet warn that in order to minimise the regulatory gap between Northern Ireland and Great Britain, and trade frictions between Dover and Calais, the UK is likely to remain very closely aligned to the EU’S single market rules for the duration.
This has been described as “vassalage”, since the UK will have no say over these EU rules which can be used by German and French industrial lobbies to hurt UK interests.
Dominic Raab, the Brexit secretary, had initially demanded the right for the UK to “unilaterally” pull out of this arrangement, but the EU is clear this would entail leaving Northern Ireland stuck in Europe’s regulatory orbit – something Mrs May is clear is unacceptable. It now looks as if this “backstop to the backstop” has been subsumed into a single backstop – something No 10 will cite as a victory – but the fundamental question remains: if Great Britain walks away from its customs union, does it leave Northern Ireland behind in theirs?
Sources on both sides say the deal will contain a “review mechanism” through which the UK can complain that the EU is not doing enough to deliver on the trade deal that would set them “free”. But will this be worth the paper it’s written on?
Geoffrey Cox, the Attorney General, has talked of an arbitration panel to break any EU-UK impasse, but EU sources are adamant that such panels (which do feature in the governance of other parts of the Withdrawal Agreement) cannot settle political disputes of this nature.
Questions of interpreting EU law can only be settled by the European Court of Justice, while such panels can then only address narrow questions over whether or not an agreed treaty has been fairly interpreted.
As one source close to the talks puts it: “How do you decide who is dragging their feet on a unicorn hunt?”
So however artfully constructed this deal text is, it will still need to answer that basic point: is the UK free to terminate the backstop and, if it does, where does that leave Northern Ireland?
As Leo Varadkar, the Irish Taoiseach, said yesterday, whether it’s a “double backstop, a backstop to the backstop or a hybrid backstop” the point is whether or not it legally binds the UK not to create a hard border in Ireland.
If that is the case, then however Mrs May tries to sugar the pill, this deal may yet prove a hard one to swallow.