Why Mrs May’s Renegotiation of the Northern Ireland Backstop Will Fail!
There is a fundamental logical flaw in the arguments of the DUP and the ERG that mean it is impossible for the EU to concede to the demand that there be no physical border between Northern Ireland and Eire. This is not related specifically to the Good Friday Peace Agreement but arises because Mrs May and her right-wing allies are not willing to accept that either Northern Ireland or the whole of the UK will remain indefinitely within the Single Market and the Customs Union. Wanting both no physical border and the freedom to negotiate independent trading arrangements creates mutually incompatible outcomes.
The reason that today there are no physical borders between EU member states (including on the island of Ireland) is because the rules on trade and travel are the same in all the member countries. There is no requirement for checks as there are no duties and the regulations as to quality etc. are the same.
Once the UK leaves the Single Market and the Customs Union there will be a divergence in the rules and regulations between Eire and the UK. (If that does not happen then there would be no reason for us to leave the EU as we would be following their rules and regulations.) This divergence itself creates a border, with the rights and obligations on the regulators to check that goods entering their territories conform to their rules. If they do not do this then there are risks of smuggling to avoid duties or improper materials entering the market, distorting the rules on competition or product safety. Whether these checks occur physically at the border or in some other way, there is technically a border and a need to check.
The DUP and ERG acknowledge this but say that the only important thing is that these checks should not lead to a physical presence of customs officers where roads cross between the two countries. Hence the discussion around the use of technological solutions and trusted trader schemes, where declarations are made electronically and checks are infrequent. However, it is also agreed that sufficiently robust technology does not exist today and given that those who wish to seek advantage by illegally trading products across borders for financial gain are usually also technologically literate, it seems likely that whatever solutions are eventually developed the smugglers will find ways to avoid them. It is therefore difficult to envisage a situation where no checks occur.
In fact, what the Brexiteers believe is that because the EU want to continue to trade with the UK it will accept the risks to its rules, regulations and duties that not having a border in N. Ireland will entail. They are happy to allow smuggling into the EU as this would not create a risk to the UK. As they also believe in tariff-free and unregulated trade there would be no loss to the UK exchequer as they do not want tariffs on any imports. Presumably they are also not worried if substandard or unsafe products found their way into the UK market, as that is the price to pay for unfettered competition. Indeed, the smuggling opportunities for those who want to evade the EU common external tariff, of for example 40% on lamb imports, would create jobs and wealth in the UK
The problem for the EU is that even if they are prepared to trust that the standards in the UK are not likely to present a risk to EU citizens due to health a safety concerns and that the amount of smuggling to evade duties would not be significant then if the EU agreed to this between the UK and the EU, how could they resist similar requests from other countries with borders between EU member states and third countries? There are thousands of miles of land borders between EU member states and other countries, mainly in eastern Europe, and for many of these border areas the idea of unrestricted crossings by goods and people would provide a very attractive boost to their economies. Clearly if this should occur the Single Market, with no internal tariffs but a common external tariff would cease to exist. This is a fundamental feature of the EU. Thus, conceding to the UK and allowing us to not have a border in Ireland without insisting that at least N. Ireland must remain within the Customs Union and the rules of the single market creates an existential threat to the EU, which they cannot concede.
I therefore cannot see how the EU can agree to what Mrs May had promised by removing the backstop from the Withdrawal Agreement. However, I do think that there is some risk that the EU will try and provide a form of words that fudges the issue. Depending on the willingness of the Brexiteers to actually leave without any agreement this could lead to Parliament approving a deal without actually resolving the issue. The need for a border in between the U.K. and the EU actually depends on the future trading arrangements at the end of the Transition Period. Should we decide to stay in the Customs Union and accept the single market rules and regulations, as appears to be the basis of Jeremy Corbyn’s latest proposal, then the backstop in N. Ireland will not be needed. Given that we do not know what the longer-term trading relationship will be it is possible to imagine that both sides would be prepared to continue to kick the can down the road for several more years by not specifying exactly what would happen to the backstop should we fail to reach a satisfactory trade deal and hoping that this will never happen.
If we are to avoid a fudge over the backstop, I think we need to point out that agreeing to the Withdrawal Agreement does nothing to bring to an end the debates surrounding our future relationship with the EU and if we leave the Customs Union and Single Market, we are creating a border where none exists today. On the other hand, staying inside the Single Market and the Customs Union delivers no independence from the EU’s rules while losing our current rights to a seat at the table where they are made.