The Backstop: a ‘flexible and imaginative’ solution?

Views clearly differ about the merits or otherwise of the ‘backstop’ and what it would mean – were it to come into force – for Northern Ireland and its position within the United Kingdom. Supporters tend to see it is a pragmatic and agreed UK-EU response to addressing the challenges that Brexit poses for the land border, north-south cooperation, and the upholding the 1998 Belfast (Good Friday) Agreement. Opponents regard it as undermining the economic and constitutional integrity of the United Kingdom. Argument continues.

Less attention is given to what the backstop says about the EU and its approach to Brexit. Among the backstop’s vocal opponents are those who see in what has been agreed a malign attempt by the EU, urged on by Ireland, to ‘annex’ Northern Ireland. More measured voices tend to view the Protocol on Ireland/Northern Ireland in far less dramatic terms and focus on what the Protocol does to minimize the disruption that Brexit will undeniably bring to Northern Ireland. 

Another way of looking at the backstop is as a response to the EU’s call, following the UK government 2017 notification that it intended to withdraw from the EU, to find ‘flexible and imaginative solutions’ to address Brexit’s effects on ‘the unique circumstances on the island of Ireland’. A number of observations can be made.

First, the backstop arrangements in the Protocol reveal a degree of EU flexibility not normally found in its relations with non-member states or with specific parts of them. The most obvious example is the willingness to provide for the free movement of goods from Northern Ireland into the EU. Such access, particularly given that it includes agricultural goods, is unprecedented.

Second, although this access is dependent on continued regulatory alignment, the alignment, particularly regarding non-agricultural goods, is not as extensive as in the case of other examples of close integration such as the European Economic Area. Only updates and replacements to specified EU acts are automatic; the addition of relevant new EU acts to the scope of the Protocol is by joint decision of the UK and the EU.

Third, the Protocol contains dedicated institutional arrangements notably a Specialized Committee on Ireland/Northern Ireland and a Joint Consultative Working Group. The latter is significant in that it has the potential to provide for a discrete Northern Ireland input into EU decision-shaping processes.

All this is welcomed by the backstop’s supporters. However, the backstop arrangements arguably fall short in terms of exploiting the full potential for flexibility and imagination. This reflects not only reservations on the part of the EU as to how flexible it could be while ensuring the integrity of its own legal order, but also a very limited and muted UK ‘ask’ for Northern Ireland.

The backstop arrangements do not provide, for example, for the continued free movement of services between Northern Ireland and the EU, arguably a vital ingredient in supporting ‘the all-island economy’ and facilitating north-south cooperation. Also, the backstop does not cover the free movement of people, although provision does exist for the UK and Ireland, under the Common Travel Area, to ‘continue to make arrangements between themselves relating to the movement of persons between their territories’.

Also, there are institutional shortcomings. There is, for example, no parliamentary oversight mechanism. And, although agreement has been reached in principle between the UK and the EU on maintaining Peace funding, there are no provisions for Northern Ireland’s continued participation in any specific EU programmes. 

Any involvement will be determined by the future UK-EU relationship, a future relationship that both the UK and the EU are committed to ensuring is sufficiently ambitious that the backstop arrangements do not have to enter into force. Whether that is possible, remains to be seen. If it is to be achieved, there is clear merit in ensuring that the spirit of flexibility and imagination that underpins the backstop is carried forward and drawn on in the negotiations on the future UK-EU relationship. 

Professor David Phinnemore is Professor of European Politics and Dean of Education in the Faculty of Arts, Humanities and Social Sciences at Queen's University Belfast in Northern Ireland. His research interests cover EU treaty reform, EU enlargement, forms of association with the EU, and Brexit, particularly its implications for Northern Ireland. He tweets at @DPhinnemore.