What is the Backstop?

The backstop would be a legally binding agreement between the EU and the UK that neither a hard border nor checks will be reintroduced between Northern Ireland and Ireland after the UK leaves the EU (i.e., post-Brexit).  Vincent Power explains the term "backstop" which is a central feature of the Brexit negotiations and processes.

What is the Backstop?

Concept

The backstop would be a legally binding agreement between the EU and the UK that neither a hard border nor checks will be reintroduced between Northern Ireland and Ireland after the UK leaves the EU (i.e., post-Brexit).

Rationale

The rationale is that both the UK and the EU (including Ireland) want to keep an open border on the island of Ireland post-Brexit.   However, without a special agreement, this is impossible if the UK leaves the EU’s customs union and the internal market to establish its own rules and trading agreements but Ireland remains in the EU’s customs union and internal market. The so-called backstop is this special agreement.  
                                                                                                                                                       
The EU has a customs union and an internal market.  If goods come into the EU from, say, the US then two things happen.  First, because of the customs union, the same rate of customs duty is charged by the EU Member State of importation on the goods wherever the point of entry is into the EU.  Secondly, because of the internal market, provided the goods meet EU standards then the goods have “free circulation” so they move freely around anywhere in the EU without further checks, tariffs or quotas.

The UK wants to leave the EU’s customs union to conclude free trade agreements with others.  That means that Ireland’s border becomes the EU’s border.  If there is no hard border or checks between the UK and the EU (i.e., the 499 km Northern Ireland/Republic border would be open) then something made in Aldershot in England could move to Belfast in Northern Ireland, then cross the open border into the Republic of Ireland without tariff and be sent to, say, Copenhagen in Denmark – the goods would achieve free circulation tariff-free and irrespective of whether it met the EU standards.  The EU cannot keep open the back door to the world’s largest customs union and internal market without undermining both.

But if there is a desire to keep the Northern Ireland/Ireland border open (e.g., for various policy reasons) then some mechanism is needed.  This is the backstop.  

Temporary or Permanent?

The backstop is described as “temporary” because: (a) it would be unnecessary during the transition/implementation periods (as EU law would apply even though the UK would have left the EU); and (b) both sides agree that they will replace the backstop as soon as they agree on a permanent relationship agreement. However, if the EU and UK do not agree on a replacement regime then this agreement is activated to keep the border open and to have no new checks hence there is no time limit on this agreement (unless the parties subsequently reach agreement on a permanent relationship agreement) – thus the deal is known as the “backstop” (i.e., it is activated only if there is no replacement regime agreed).

Where is the Backstop?

This commitment is in a 28-page protocol in the Withdrawal Agreement between the EU and the UK which has yet to be finalised by both sides.  It is currently being debated by the UK’s Houses of Parliament but it is likely to be ratified by the remaining 27 Member States because the 27 Governments have agreed it.

When is it triggered?

The backstop/protocol is only triggered after the end of the transition/ implementation period (currently expected to be 31 December 2020) and then only if a permanent relationship agreement is not agreed between the EU and the UK.

Will it be Legally Binding?

If the Withdrawal Agreement including the Protocol is adopted by the EU and the UK then it will be legally binding.

Where can I find  the Backstop?

On page 302 of the Draft Withdrawal Agreement.

For more information in relation to this topic, please contact Vincent Power, Partner, or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 13 February 2019