The Explainer: The Backstop
The difficult issue of the ‘Backstop’ has held up Brexit talks and might prove to be the undoing of a possible deal. But what actually is the ‘Backstop’? What does it mean and what purpose does it serve? In this edition of ‘The Explainer’ we will give you a concise overview of what it is and why it is needed.
Before we begin we must explain why the Irish problem/Northern Irish problem/border problem is such a sensitive issue. Many, if not most, readers will know that Northern Ireland was convulsed with violence for approximately thirty years in a period most often referred to as ‘The Troubles’. This came to an end, after numerous attempts to bring about peace, with the creation of the Good Friday Agreement (also known as The Belfast Agreement) in 1998. One of the most relevant pieces of the agreement (at last for the purposes of our discussion) was that there would no longer be a border between the Republic of Ireland and Northern Ireland. Since the removal of the physical border checkpoints there has been no checks in place as people and vehicles have moved across the border in both directions. The Good Friday Agreement was ratified by a public vote in referendums held in both Northern Ireland and the Republic of Ireland. The maintenance of such an open border was assisted by the fact that both countries were European Union members. Now that the UK has voted to leave the EU there is a need (in theory) for a border to protect entry into the European Union (from Northern Ireland in to the Republic of Ireland) and to protect entry into the United Kingdom from non-UK countries).
Since June 2016 many initiatives have been proposed as a means of enabling the border to remain open while maintaining the integrity of two distinct customs areas. Proposals have included CCTV and drone like solutions that would monitor vehicles crossing the border in its 300+ crossings, a trusted trader scheme where businesses would be obliged to pre-register in order to cross the border unimpeded and the positioning of a technical border in the Irish Sea that would ensure that goods leaving the mainland UK (Scotland, England and Wales) would be inspected before reaching Northern Ireland. There are others, too countless to include in a brief article. None, however, has been adjudged to be sufficient in its ability to respect the integrity of the Good Friday Agreement, protect the borders of the UK and the EU and to ensure that two states, possibly operating under different regulatory regimes, respect each other’s regulatory requirements. To that end, in late 2017, there was a proposal that the UK and EU would insert a ‘Backstop’ to buy time to develop a system that would meet the demands of all parties on a long term basis.
So, what is the ‘Backstop’. It means that the UK or Northern Ireland will remain in alignment with the EU on issues regarding regulatory standards on food, medicines and other products until such time as a workable technological solution is in place to ensure that the border stays open and that two countries in different regulatory regimes can co-exist.
Sounds good, so, what is the problem? The ‘Backstop’ is a bone of contention with hard line Brexiteers and members of the Democratic Unionist Party because they see the acceptance of the ‘Backstop’ as the UK accepting is position as a vassal state – one that can only take orders from the EU and one that has no input into EU regulations. The Democratic Unionist Party (DUP), it should be noted, holds the balance of power in the UK parliament as it has 10 Members of Parliament supporting the Conservative Party and enabling it to govern. The initial suggestion on the ‘Backstop’ that Northern Ireland alone would be included and this was unacceptable to the DUP as they saw themselves as being removed from the unity of the United Kingdom. To assuage fears among the DUP it was suggested that the entire UK would adopt the ‘Backstop’ until such time as a solution could be created to the satisfaction of both the UK and the EU. The inclusion of the entire UK provoked the ire of hard line Brexiteers who wish to be ‘done with’ the EU as soon as possible (March 30th 2019).
Backstop 1, which is the Northern Ireland alignment with the EU is a bone of contention as much as much as Backstop 2, which is the alignment of the entire UK with the EU. The EU’s preference is for backstop 1. However, the UK negotiators wish to pursue Backstop 2 in an effort to maintain their confidence and supply agreement with the DUP.
The alignment in both events is required to prevent products (including devices and pharma) from a different regulatory regime entering the EU and, as such, is being upheld by the EU negotiators as an immoveable object in negotiations.