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The Irish backstop (formally called the "Northern Ireland Protocol") was a proposed protocol to a draft Brexit withdrawal agreement that never came into force. It was developed by the May government and the European Commission in December 2017 and finalised in November 2018, and aimed to prevent an evident border (one with customs controls) between the Republic of Ireland and Northern Ireland after Brexit.
The backstop would have required keeping Northern Ireland in some aspects of the Single Market until an alternative arrangement was agreed between the EU and the UK. The proposal also provided for the UK as a whole to have a common customs territory with the EU, until a solution was delivered to avoid the need for customs controls within the UK (between Northern Ireland and Great Britain). The 'backstop' element was that the arrangement would have continued to apply potentially indefinitely unless the UK and the EU were both to agree on a different arrangement, for example on a trade agreement between UK and EU at the end of the transition period.
The Irish government and Northern Irish nationalists supported the protocol, whereas Unionists (who reject any difference in treatment as between Northern Ireland and Great Britain) opposed it. By early 2019, the Westminster Parliament had voted three times against ratifying the Withdrawal Agreement and thus also rejected the backstop. The decision of the Democratic Unionist Party (which had a confidence and supply arrangement to support May's minority government) to vote against the proposal was decisive in its defeat.
In October 2019, the new Johnson government renegotiated the draft, replacing the backstop. In the , the whole of the UK was to come out of the EU Customs Union as a single customs territory. Northern Ireland was to be included in any future UK Trade agreement, but have no tariffs or restrictions on goods crossing the Irish border in either direction. This in effect created a de facto customs border with Great Britain the "Irish Sea border". There is also a unilateral exit mechanism by which the Northern Ireland Assembly can choose to leave the protocol via a simple majority vote. This new protocol has been dubbed by some as "Chequers for Northern Ireland", due to its similarity with the UK-wide Chequers future relationship plan proposed by Theresa May, which had previously been rejected by the EU and criticised by Johnson.
In February 1923, shortly after the creation of the Irish Free State, a Common Travel Area (CTA) consisting of the newly founded state and the United Kingdom was informally agreed, in which each side would enforce the other's external immigration decisions, thus avoiding the need for immigration controls between the two countries. This tradition has been continued so that () Irish citizens are entitled to settle, work and vote in the UK, with British citizens in Ireland having similar rights.
The The Troubles broke out in 1969 and involved the deployment of the British army under Operation Banner carrying out security checks, closing over 100 border crossings and constructing observation infrastructure across Northern Ireland; these measures began to be reverted following IRA ceasefires in 1994 and 1997.Albert, Cornelia (2009). The Peacebuilding Elements of the Belfast Agreement and the Transformation of the Northern Ireland Conflict. Peter Lang (publisher), p. 234;
The completion of the European Single Market in 1992 (initiated by European Commissioner Lord Cockfield) and the Good Friday Agreement (brokered by Irish-American Senator Mitchell) in 1998 were seen as making it possible to dismantle what had previously been extensive border infrastructure between Northern Ireland and the Republic of Ireland.
On 29 March 2017, Prime Minister Theresa May commenced the two-year Brexit negotiation process by serving notice under Article 50 of the EU Treaty. In response, the remaining EU countries (EU27) published their "phased" negotiation strategy which postponed any negotiations on the future relationship with the UK (the non-binding "Political Declaration"), until a binding withdrawal agreement had been concluded, covering:
Negotiations between officials led to a draft agreement which was expected to be finalised at a meeting between Jean-Claude Juncker and Theresa May in Brussels on 4 December 2017. There was progress on the financial settlement and citizens' rights, but the meeting was abandoned after Northern Ireland's Democratic Unionist Party objected to arrangements for the Irish border.
Furthermore, paragraph 50 stressed that there would be no new controls on goods and services moving from Northern Ireland to Great Britain. Subsequently, in 2018, the EU version of the final withdrawal agreement omitted paragraph 50 on the basis that it is an internal matter for the UK. This final withdrawal agreement of 2018 was initially approved by the British Prime Minister (Theresa May), but the DUP (on whose confidence-and-supply support the government's minority administration depended) vetoed it in the parliamentary vote of January 2019. UK to warn of Brexit backstop’s threat to Irish peace treaty, Tom McTague, Politico, 27 January 2019.
The concept of a "hard border" is defined by 'physical infrastructure and checks', as noted in the protocol's preamble on page 303:
The concept of "protecting" the 1998 Agreement is not further defined or referred to in the Northern Ireland Protocol or in the Withdrawal Agreement as a whole.
To avoid a border between Northern Ireland and the rest of the UK, article 6 of the Northern Ireland protocol proposes that from the end of the transition phase (on 31 December 2020), the UK and the EU customs territories will operate as one until the parties agree jointly that a mutually satisfactory alternative arrangement has been reached. The single customs territory between the United Kingdom and the EU does not cover fish products: as a result fish transported from Great Britain to Northern Ireland would be subject to EU tariffs unless a separate agreement on fisheries were reached.
Northern Ireland will per article 6(2) be bound by the entire EU Customs Code, and shall be considered part of the EU customs territory per article 15(1). Furthermore, Northern Ireland will maintain "regulatory alignment" with the EU Single Market, again until a mutually satisfactory alternative arrangement can be put in place for Single Market regulations as well as Customs and Excise. Brexit draft agreement: What has been agreed on Northern Ireland to avoid a hard border Belfast Telegraph, 14 November 2018. European Commission - Fact Sheet: Protocol on Ireland and Northern Ireland European Commission, 14 November 2018.
This protocol was strongly opposed by the Democratic Unionist Party, who saw it as weakening Northern Ireland's place within the United Kingdom, Irish backstop is ‘toxic,’ would ‘break up’ UK, says DUP leader, Politico, 5 February 2019. and is regarded by a number of commentators as the main reason why the withdrawal agreement has not been ratified by the Parliament of the United Kingdom. (Dr Roxan is Associate Professor in the LSE Department of Law). Since 2018, the DUP has said the Northern Ireland backstop must be removed from the Brexit withdrawal agreement if they are to continue to support the Conservative government in the House of Commons, although the party has said that it's open to a time limit on the backstop. Brexit talks: What does the DUP want?, Jayne McCormack, BBC News, 17 January 2019.
The protocol is also opposed by the Ulster Unionist Party Ulster Unionist Party leader says NI will not be EU ‘dowry’ for Brexit delivery, Amanda Ferguson, Irish Times, 9 March 2019. and the Traditional Unionist Voice. Jim Allister: Northern Ireland not the 'plaything' of EU, Jayne McCormack, BBC News, 16 March 2019.
Sinn Féin, the SDLP, the Alliance Party of Northern Ireland and the Green Party in Northern Ireland all support the backstop.
In April 2019, a report commissioned by the German Green Party concluded that the backstop could allow the UK to undermine EU environmental, consumer, and labour standards, because it lacks sufficiently detailed controls.
One commentator says Britain is faced with a trilemma between three competing objectives: an open border on the island; no border in the North Channel; and no British participation in the European Single Market and the European Union Customs Union.
According to polls in Northern Ireland exploring different Brexit scenarios, 60% of the population would support an NI-EU link that is closer than the post-Brexit GB-EU link.
On 15 January 2019, the UK parliament rejected a government motion to approve its draft withdrawal agreement. In late January 2019 many Brexit-supporting Conservative and DUP MPs continued to oppose a backstop without a specified end-date, concerned that it could tie the UK to many EU rules indefinitely. In subsequent votes, most of the Conservative rebels voted for the Withdrawal Agreement and backstop, though the DUP continued to oppose it and thus contributed to its continuing defeat. This opposition was in spite of a LucidTalk opinion poll (released 6 December 2018) indicating that 65% of Northern Ireland voters were in favour of a Brexit that kept Northern Ireland in the EU single market and customs union. On 28 January 2019, May expressed opposition to the backstop that she and the EU had agreed, and urged Tory MPs to vote in favour of a backbench amendment replacing the backstop with unspecified "alternative arrangements".
Following the vote Michel Barnier said the backstop is "part and parcel" of the UK's Brexit withdrawal agreement and would not be renegotiated.
Barnier said to France's RTL radio: "Time is too short to find an alternative arrangement to the Irish backstop and Britain's divorce deal with the European Union will not be re-opened for negotiation."
The full advice was later released showing that the terms of the backstop could mean that the UK could face "protracted and repeated rounds of negotiations". In March 2019 further advice was published saying that the Vienna Convention on the Law of Treaties could be used if the backstop was shown to have a "socially destabilising effect on Northern Ireland".
, these alternative arrangements remain to be identified. On 8 May 2019, the UK Conservative Party established a 'panel of experts' to advise its Alternative Arrangement Commission on possible technical solutions to the dilemma.
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