Brexit and the Backstop

28th August 2019

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Much has been said about the Irish Backstop, but little clarity has resulted.

The current Prime Minister of the UK, Mr Johnson, has demanded that the Backstop be removed from the Withdrawal Agreement. He seems confident that the EU27 will back down on its insistence that it is retained. Seemingly, an impasse arises.

However, if the rhetoric is removed, a much clearer picture emerges.

Mr Johnson’s confidence appears to be based upon the likelihood that if the UK were to leave the EU without a deal, then a hard border would be imposed between Northern Ireland and Eire. That is because it would be necessary to have a hard border between an EU country and a non-EU country. That hard border would be likely to cause harsh economic consequences to those on either side of the border. Mr Johnson’s reasoning then proceeds that as the EU27 would wish to avoid any calamity befalling Eire, it would drop its demands for the backstop, which would then allow the UK to leave with some sort of modified agreement. Mr Johnson cannot envisage the EU27 insisting upon something that would result in the very thing that it wishes to avoid, namely a hard border, as clearly (so he posits) that makes no sense.

However, Mr Johnson’s reasoning is flawed.

While the EU27 does not wish to impose any pain and suffering upon the people of Eire, it values more highly the integrity of the remaining EU27 countries. That integrity in part arises from having a clear border between those inside and those outside the EU. The EU27 comprises at least 400 million people. It is more than capable of acting in a way to alleviate any potential suffering for the 5 million people of Eire. This is particularly so given the likelihood that a hard border would trigger a reunification vote in the Republic under the Good Friday Agreement that might well be successful, and that in turn would make the Backstop irrelevant. Further, while the EU27 does not suffer from an over-abundance of vanity, it would be humiliating for it to back down on this totem issue. An implicitly central strand of Mr Johnson’s strategy is that the EU27 would eat humble-pie and be content with that situation. That is unrealistic.

Therefore, what is likely to happen? Mr Johnson has repeatedly stated that the UK will leave the EU by the 31st October 2019. While it is always conceivable that he will change his mind, it would be politically difficult in this case, and might well lead to the end of his premiership. As outlined above, it is unlikely that the EU27 will back down and allow the backstop to be removed. Far more likely that the EU27 will accept, reluctantly, the departure of the UK without a deal, and then implement the necessary actions to ameliorate the matter in the expectation that within a few years the problem will have resolved itself by the unification of Ireland.

That in turn might well lead to renewed vigour for the independence of Scotland.

It is, of course, possible that this actually what Mr Johnson wants, because then that would materially assist in the Conservative Party (no longer the Conservative and Unionist Party) retaining power in Westminster.

Article written by Michael Edenborough QC