With time running out, UK proposes changes in Irish backstop

With the Brexit clock continuing to tick, second by second, toward midnight on Oct. 31, and time running out as well for submission by the UK of a proposal regarding the Irish backstop that could be considered by the European Council at its meeting on Oct. 17-18, on Wednesday the UK delivered the draft legal text of a new Protocol on Ireland/Northern Ireland to the EU. As the draft text was delivered, Prime Minister Boris Johnson wrote to European Commission President Jean-Claude Juncker, with copies to the other members of the European Council and to Michel Barnier, the EU’s chief Brexit negotiator, describing the essential elements of the UK’s proposal to amend the Protocol.

The Protocol, which, with its nearly 150 pages of annexes, is 173 pages in length, is contained within the 599-page Withdrawal Agreement negotiated by the EU and the UK in 2018. The backstop consists of the provisions of the Protocol – in particular, Article 6 – which are meant to ensure that the border between Ireland and Northern Ireland remains, as it is today, open in all future circumstances unless and until the EU and UK negotiate a superseding agreement in regard to their future economic relationship that achieves that purpose. Article 6(1) states that “until the future relationship [to be negotiated after the UK leaves the EU] becomes applicable, a single customs territory between the Union and the United Kingdom shall be established.” Article 6(2) states that Northern Ireland will continue to remain in the EU’s Single Market for goods and the EU’s customs regime and will be required to comply with all of the relevant rules and regulations of both.

When Johnson became Prime Minister on July 24, he made it clear the UK would leave the EU on Oct. 31, with or without a deal, “no ifs or buts.” But he also made it clear that he hoped to leave with a deal rather than without one – specifically, “a new deal, a better deal,” which meant, for him, a deal without the Irish backstop. On Aug. 19, he wrote to European Council President Donald Tusk, with copies to Juncker and the other 27 members of the European Council, setting out his government’s position in regard to the backstop and proposing what he believed to be a solution that would enable the UK to leave with a deal on Oct. 31. In the four-page letter, he said, “I very much hope that we will be leaving with a deal. You have my personal commitment that this Government will work with energy and determination to achieve an agreement. That is our highest priority.” But, he said, “the backstop cannot form part of an agreed Withdrawal Agreement. The task before us is to strive to find other solutions….” 

The first step in reaching an agreement, Johnson said, was to ensure there is no return to a hard border between Northern Ireland and Ireland. Toward that end, he said the UK will not put in place infrastructure, checks, or controls at the border and “would be happy to accept a legally binding commitment to this effect.” Secondly, he said “flexible and creative” solutions to the unique circumstances on the island had to be found, which meant that “alternative ways of managing the customs and regulatory differences contingent on Brexit must be explored.” Since the UK and EU have already agreed that “alternative arrangements” can be part of the solution, he proposed that “the backstop should be replaced with a commitment to put in place such arrangements as far as possible before the end of the transition period [i.e., before Dec. 31, 2020 or, if extended, Dec. 31, 2021 or Dec. 31, 2022] as part of the future relationship.” And third, he said the UK is “ready to look constructively and flexibly at what commitments might help, consistent of course with the principles set out in this letter.”

Johnson spoke by phone with Irish Taoiseach Leo Varadkar for almost an hour that evening. Varadkar reiterated the EU27 position that the withdrawal agreement couldn’t be reopened and emphasized the importance of the legally operable guarantee to ensure an open border and continued free trade on the island. Tusk reiterated that message the next day but, importantly, also indicated, for the first time, that it might be possible to revise or replace the backstop: “The backstop is an insurance to avoid a hard border on the island of Ireland unless and until an alternative is found. Those against the backstop and not proposing realistic alternatives in fact support re-establishing a border. Even if they do not admit it.” 

Those signals were subsequently amplified by German Chancellor Angela Merkel after her meeting with Johnson on Aug. 21, then by French President Emmanuel Macron after their meeting the next day, and then by Tusk again after his meeting with Johnson at the G7 meeting in Biarritz several days later. Merkel made it clear she was open to a solution that would ensure that the backstop would never take effect. In a widely-cited passage, she said, “It has been said we can probably find [a solution] in the coming two years [i.e., in the negotiation of the future relationship that would take place during the transition period]. But maybe one can find it also in the next 30 days. Why not? Then we would have taken a whole step forward.” She noted the backstop is simply a “place-holder” or “insurance policy;” if the border issue were resolved, “it would no longer be necessary.” Macron said he was “very confident” the UK and EU would find “something intelligent in 30 days if there is goodwill on all sides.” “In the coming month,” he said, “we are not going to find a new withdrawal agreement that is very different from the existing one” – implying for the first time that there could indeed be a new agreement.” At Biarritz, Tusk told Johnson the EU was open to alternatives to the backstop. But, he said, any alternative would not only have to be “realistic” but also “immediately operational.”

On Sept. 16, Johnson had a working lunch with Juncker and Barnier in Luxembourg at which Juncker reiterated that it was the UK’s responsibility to come forward with “legally operational solutions that are compatible with the Withdrawal Agreement.” But he also underlined the Commission’s “continued willingness and openness to examine whether such proposals meet the objectives of the backstop.” “Such proposals,” he said, “have not yet been made.”

Several days later, David Frost, the UK’s chief Brexit negotiator, tabled three “non-papers” – confidential documents that outlined ideas for further discussion but did not constitute concrete proposals. The “non-papers,” each one only a page in length, provided, the UK said, a basis for “technical discussions” on, respectively, customs checks, regulatory checks on manufactured goods, and sanitary rules for agricultural goods and produce. Although not formal proposals and, for that reason, not circulated to the other EU member states, the papers discussed the use of technology and trusted-trader schemes to facilitate customs checks away from the Irish border; joint surveillance of the market in manufactured goods to ensure their compliance with the rules of the Single Market; and creation of an all-Ireland sanitary and phytosanitary (SPS) agri-food zone.

The Commission said the sketchy plans would not avoid a hard border, protect the all-island economy, and preserve the integrity of the EU’s Single Market. Following a meeting on Sept. 20 between Stephen Barclay, the UK Secretary of State for Exiting the EU, and Barnier, it said the technical talks would continue, but noted “it is essential that there is a fully workable and legally operational solution [to avoid a hard border on the island of Ireland] included in the Withdrawal Agreement.” Nevertheless, it said, “we remain willing and open to examine any such proposals that meet all the objectives of the backstop.”

But lest there be any doubt about the EU’s view about the UK’s non-papers, last Monday, Barnier said, “the new government of the UK wants us to get rid of this solution, the so-called backstop and wants…a regulatory and customs land border on the island of Ireland. The UK government also wants the EU to change the way the internal market and border control operates after Brexit. As I am sure you will understand, this is unacceptable…. Let me therefore put it clearly that based on current UK thinking, it is difficult to see how we arrive at a legally operable solution that fulfils all the objectives of the backstop.”

Later last week, the UK presented another “non-paper,” this one six pages, that provided further ideas about the cross-border movement of food, animals and plants in an all-Ireland agri-food zone. But that paper, like the earlier ones, only added to the increasing doubts within the Commission and among the member states that an agreement could and would be reached before the European Council meeting – doubts that were, of course, further amplified by the political turmoil in the House of Commons after Johnson prorogued the Parliament and then after last Tuesday’s unanimous decision by the UK Supreme Court that Johnson’s advice to the Queen to prorogue the Parliament and the prorogation itself were unlawful.

Yesterday, the UK delivered its proposed draft text of the Protocol to the Commission. In his four-page letter to Juncker, Johnson set out what he regards as a “reasonable compromise: the broad landing zone in which I believe a deal can begin to take shape.” Calling the current backstop in the Withdrawal Agreement “a bridge to nowhere,” he said the new Protocol was centered on the UK’s commitment to find solutions compatible with the Belfast (Good Friday) Agreement and confirmed its commitment to long-standing areas of collaboration with Ireland such as the Common Travel Area and North/South cooperation.

In terms of the amendments themselves, Johnson noted that the proposed Protocol provides for the potential creation of an all-island regulatory zone covering not just sanitary and phytosanitary (SPS) and agri-food rules but all goods, eliminating all regulatory checks for trade in goods between Ireland and Northern Ireland by ensuring that goods regulations in Northern Ireland are the same as those in the EU. However, he noted that, in the name of democracy, the UK is proposing that the Northern Ireland Executive and Assembly have the opportunity to endorse the arrangements during the transition period, before they enter into force, and every four years thereafter. And it’s proposing that if consent is not secured, the arrangements would lapse. Finally, the UK is proposing that Northern Ireland be fully part of the UK customs territory, and not part of the EU Customs territory, after the end of the transition period. And it’s proposing that all customs processes that would be needed to ensure compliance with the separate UK and EU customs regimes take place on a “decentralised basis, with paperwork conducted electronically as goods move between the two countries, and with the very small number of physical checks needed conducted at traders’ premises or other points on the supply chain. To enable this, we should both put in place specific, workable improvements and simplifications to existing customs rules between now and the end of the transition period….”

The draft text has not yet been made public but it seems clear from Johnson’s description of the proposed amendments to the Protocol that, while the EU and Ireland will welcome the proposal to create an all-island regulatory zone for trade in all goods, they will object strenuously to the proposal that the Northern Ireland Executive and Assembly have the opportunity to block the arrangement even before it takes effect at the end of the transition period and periodically thereafter, and to the proposal that that there be customs checks on the movement of all goods across the Irish border. The combination of electronic checks and physical checks at traders’ premises and other points would undoubtedly reduce to some unknown degree the extent to which the border between Northern Ireland and Ireland would remain, as it is now, open.

In a phone conversation with Johnson yesterday afternoon, while welcoming his determination to advance the talks ahead of the October European Council and acknowledging the positive advances with respect to the full regulatory alignment for all goods, Juncker noted “there are still some problematic points that will need further work in the coming days, notably with regards to the governance of the backstop.” And he noted another concern that needs to be addressed: the substantive customs rules. In the conversation, he emphasized again that “we must have a legally operational solution that meets all the objectives of the backstop: preventing a hard border, preserving North-South cooperation and the all-island economy, and protecting the EU’s Single Market and Ireland’s place in it.” Barnier summed it up more succinctly: “There is progress but, to be frank, a lot of work still needs to be done.”

Perhaps the EU and UK will resolve the substantial differences that exist between them in regard to the backstop quickly so the other member states have sufficient time to consider the new Withdrawal Agreement with its modified Protocol on Ireland/Northern Ireland before the European Council meeting on Oct. 17. But that seems unlikely. And it seems even more unlikely after the political turmoil of recent weeks, that the UK government, which no longer has a working majority in the House of Commons, will be able to obtain a majority that approves the amended Withdrawal Agreement or, failing that, a no-deal exit prior to Oct. 19, the date by which, if neither outcome has happened, Johnson must, under the terms of the European Union (Withdrawal) (No. 2) Act 2019, request an extension of the UK’s exit date to Jan. 31, 2020.

But then, this is the long-running, possibly never-ending, Brexit saga and anything can happen. After all, who would have thought that, after last week’s unanimous decision by the UK Supreme Court that his advice to the Queen to prorogue Parliament and the prorogation itself were unlawful, Johnson would stir up that hornets’ nest again by announcing, as he did last night, that he intends to request the prorogation of Parliament from next Tuesday evening until a Queen’s Speech on Oct. 14?

David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies.