Robert Basedow – Is the EU Headed for a ‘Southern Irish’ Backstop in the Case of a Hard Brexit?

Some members of the UK government have hinted that the country may unilaterally refrain from introducing controls at the border with the Republic of Ireland in the case of a hard Brexit. Robert Basedow explains that if this were to occur, it would constitute a serious challenge for the EU and its single market. Customs authorities on the continent may have to enforce a ‘Southern Irish backstop’ and check that goods coming from Ireland are indeed of Irish rather than British or third country origin.

Robert Basedow is an Assistant Professor in International Political Economy at the LSE’s European Institute.

Cross-posted from LSE EUROPP

he most contested provision of the draft withdrawal agreement negotiated between the United Kingdom (UK) and the European Union (EU) is the so-called backstop. The withdrawal agreement foresees that the UK stays in the EU’s single market for a two-year transition period after formally leaving the EU. During this period, the EU and the UK would negotiate a comprehensive trade agreement to create a new legal framework for their economic relationship. In case, however, the EU and the UK fail to finalise these negotiations within the two-year transition period – a likely scenario as most trade negotiations take much longer – the backstop provision would kick in and keep Northern Ireland in the single market as well as the rest of the UK in the EU’s customs union until an agreement is reached.

Initially, the EU had proposed to limit the backstop to Northern Ireland. Only Northern Ireland but not the rest of the UK would have stayed tied to the EU’s single market and customs union, which would have required a customs border within the UK. Theresa May, however, rejected this EU proposal under pressure of her coalition partner – the Democratic Unionist Party – and pushed for an all-UK backstop to prevent a UK-internal customs border. The backstop provision is meant to prevent a hard Irish border and thereby to honour the Good Friday Agreement (1999). The Good Friday Agreement ended decades of bloodshed and violence in the UK between Northern Irish Republicans and Unionists. It dissuaded violent tensions inter alia by guaranteeing an open border between Northern Ireland and the Republic of Ireland.

The backstop – a provision meant to avoid a new outbreak of violence within the UK – is nonetheless highly contested in the current British government and among Brexiters. They fear that if the UK accepted the backstop provision it would effectively sign away British and notably Northern Irish sovereignty. The British government, Brexiters and many Members of Parliament worry that the provision would keep the UK permanently in the position of a ‘vassal state’ of the EU and – more realistically – weaken the UK’s bargaining position in future trade negotiations with the EU. The EU could exploit the UK’s desire to minimise any backstop period to impose detrimental terms on the UK in future negotiations.

It is for these reasons that the British government and many Brexiters seem to favour a ‘hard Brexit’ over an orderly withdrawal under the terms of the current draft agreement. The majority of the House of Commons, however, is more concerned about the immediate dangers and costs accruing from a hard Brexit and has therefore adopted legislation to prevent the government from leading the UK out of the EU without a withdrawal agreement. It remains unclear though whether this legislation can deliver and stop the government from pushing ahead with a hard Brexit.

These observations trigger the question of what would happen to the Irish border if a hard Brexit becomes reality. Members of the British government have hinted at the possibility that the UK may refrain from unilaterally introducing controls at the border with the Republic of Ireland in case of a hard Brexit. This step would arguably honour the Good Friday Agreement, preserve the fragile peace process in Northern Ireland, shift the political blame for any border checks on Dublin and resonate with the free trade ideas of many Brexiters. Ironically though, this step would also betray the Leave campaigns’ key demand to take back control of British borders to stop ‘unchecked’ migration. EU migrants could enter the UK without checks through Northern Ireland, which would amount to less – not more – control over British borders and migration. The UK would deprive itself from enforcing its own migration and border laws.

If the UK were to refrain from introducing border controls in Northern Ireland, it would create a predicament for the Republic of Ireland and the EU. The Republic of Ireland would find itself between a rock and a hard place. It would have to choose to either unilaterally introduce checks at the Northern Irish border to prevent its border from becoming a smuggling loophole to the single market; or indeed refrain from introducing border checks to protect the fragile Northern Irish Peace Process. In short, the Republic of Ireland would face the harsh choice between breaching its obligations under European law or risking a violent flare-up in Northern Ireland. It is difficult to predict what the Irish government would decide in this situation. It seems, however, possible that it would give priority to preserving peace and stability on the Irish island and thus forego border checks.

An open Northern Irish border would constitute a serious challenge for the EU and its single market. The EU may have to take steps to prevent the Northern Irish border from becoming a loophole in its external border. An open Northern Irish border could lead to illegal and undeclared imports – of products such as milk, meat or sugar subject to high EU import tariffs and tight product regulations – from the UK and third countries into the single market. To prevent the Northern Irish border from becoming a smuggling route, the EU may have to take emergency actions and bend its laws to re-impose at least on a temporary basis controls on goods exported from the Republic of Ireland into other parts of the single market.

Customs authorities on the continent may have to enforce a ‘Southern Irish backstop’ and check that goods coming from Ireland are indeed of Irish rather than British or third country origin and thus qualify for free trade within the single market. Such controls would increase trading costs and would primarily affect Irish agriculture, chemical producers and machinery builders, which are the leading Irish export sectors. On the upside, such controls would leave the economically more potent services trade between the Republic of Ireland and the single market unaffected.

This discussion highlights that a hard Brexit might indeed rupture the EU’s single market and customs territory much like the initially discussed ‘Northern Ireland only’ backstop would fracture the British customs territory. The controversy over the backstop thus in essence appears to be a debate over who carries the political and economic costs of keeping the Northern Irish border open to preserve the Good Friday Agreement and Northern Irish Peace Process. Does the UK shift the costs toward the Republic of Ireland and the EU; or does the UK internalise the costs of maintaining peace within its territory?

While a hard Brexit may initially shift these costs to Ireland and the EU, it seems highly unlikely that the EU would be willing to sustain a ‘Southern Irish backstop’ for an extended period of time. Taking into consideration that the UK will need to return to the negotiating table soon after a hard Brexit, the EU would certainly make a Northern Irish backstop and the re-establishment of the integrity of its single market the key condition for any steps forward. To dissuade British concerns over the current backstop arrangement enshrined in the withdrawal agreement and as a sign of goodwill, the EU could however propose now to limit any backstop period in time in order to disprove the claim that the EU intended to use the clause to permanently control the UK. A return to a cooperative mind-set is indeed the only way to resolve the current situation for the EU and the UK.

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