Marie-Claire Considère-Charon, Professeure émérite de l’Université de Franche-Comté et auteure de l’ouvrage “Irlande. Une singulière intégration européenne” aux éditions Economica, revient sur le backstop et son histoire dans un article d’une grande pédagogie. Il n’est pas inutile de revenir sur ce sujet qui demeure la problématique majeure du Brexit, sous-estimée par les Anglais et, dans une certaine mesure, par les Européens lors de la campagne électorale de 2016 et au début des négociations. À la lecture de cet article très complet, nous constatons que les deux parties sont restées arc-boutées sur leurs positions, rejetant souvent rapidement les solutions proposées (union douanière, arrangements technologiques, par exemple). Les alternatives au backstop n’ont donc guère prospéré pour l’heure et il paraît désormais difficile de l’éviter, sauf à soutenir une sortie sans accord ou à assurer un maintien du Royaume-Uni dans une union douanière (voire au sein de l’UE).

Nous profitons de la publication de ce billet pour indiquer qu’il est désormais presque acquis que les Britanniques participeront aux élections européennes. Notons que les élections locales ont été particulièrement défavorables aux deux grands partis (conservateur et travailliste). Les citoyens ont vraisemblablement sanctionné l’indétermination qui anime leurs dirigeants actuels. Les négociations entre Theresa May et Jeremy Corbyn sont d’ailleurs toujours au point mort. La prochaine date clef, après celle des résultats des élections, sera le 2 juillet, jour de la première réunion du nouveau Parlement.

The Irish border issue : is there an alternative to the backstop ?

At her Conservative conference keynote speech, on 5 October 2016, Theresa May expressed her views on what kind of brexit she wanted. Three months later on 17 January 2017 at Lancaster House she set out the “red lines” the British government would rely on which meant ruling out the possibility of the UK remaining in a customs union with the EU and in the single market as well as an end to the role of the European Court of Justice in interpreting British laws.

It all amounted to a hard brexit, rebranded “clean” by its advocates, with a strict interpretation of the referendum vote “Brexit means brexit”. She also insisted that the result of the brexit referendum was a vote to “take control of our borders” – a mantra which was repeatedly used by the pro-brexit campaigners.

The logic of a clean break with the customs union would mean that Britain would become a third country and that the common European Union tariffs would apply to British goods coming into the EU. Also, once outside the Customs Union, Britain would be exempt from the common European Union tariffs on third-country goods and would therefore be able to apply its own tariffs after negotiating trade deals with non-EU countries -a right many pro-Brexit politicians said they were very keen on.

Being able to create its own regulations and standards, Britain would also be able to restrict migration flows from the rest of the EU -which many Brexiteers have referred to as “the benefits to leaving”.

 As for leaving the single market this would imply that goods, services, capital and citizens would cease to move freely between the United Kingdom and the remaining 27 member states. This would normally be the case across the Irish border, which is the only land border with the rest of the European Union. Consequently border checks between Ireland, a remaining European member, and Northern Ireland as part of United Kingdom would have to be enforced whether they be tax, customs, regulatory or sanitory checks.

And yet Theresa May on a number of occasions repeated her commitment to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border and maintaining the Common Travel Area which incorporates Ireland and Northern Ireland.

When she met with Irish Taoiseach Enda Kenny on 31 January 2017 in Dublin Theresa May declared “there will be no return to the borders of the past” and added that she remained committed to the Good Friday Agreement drawn up as part of the Northern Ireland peace process. Enda Kenny confirmed that he had agreed with May to keep the Irish border open and fluid and warned that any post-Brexit hard border would have “very negative consequences” for peace and stability in Ireland.

The contradiction between these two sets of desired objectives-May’s red lines and an open Irish border- is self-evident. How can one extract the United Kingdom from the customs union and the single market without restoring the Irish border ? Good intentions and noble objectives remainmeaningless if they cannot deliver and be followed by concrete and workable measures.

 The Irish border then and now

   The Irish border which is the United Kingdom’s only land border with the EU has been a highly contested border. It follows the line of partition imposed on Irelandin 1920 to create a loyalist enclave in the North of the island. It consists of a a 300-mile (about 500 km) long and winding frontier with no less than 275 crossings between the two jurisdictions-Ireland and Northern Ireland.

The border has definitely had a huge psychological impact on the geographical communities adjacent to it, both north and south. During the Troubles the Irish border was the most militarized area of Europe west of the iron curtain. In the early 1970s watchtowers, military bases and checkpoints were installed all along the northern side of the border. Their presence along with the constant buzzing of helicopters contributed to a climate of tension, uneasiness and fear. The three decades of violence known as the troubles which opposed unionists and nationalistes claimed 3600 lives. They included terror attacks by paramilitary groups from both sides of the political divide.

The two communities north and south of the border have undoubtedly been alienated from one another by history and the legacy of a long standing and bitter conflict. Blocked and bombed roads deeply hindered physical links between neighbouring villages and communities on both sides of the border.

Perceptions of the border of course have varied according to which community is concerned. For people in the North it was viewed as a kind of protection from backwardness, poverty and bigotry. It was the dividing line that isolated the industrialized north from the under-developed south. For people in the south it was a barrier that sheltered them from an alien rule and it soon became highly emblematic of sectarianism and the violence that ensued.

The number of metaphors used in reference to the border is quite significant, whether the border be referred to as “a curtain”, “a barrier”, “a wall” or “the border corridor”.

For both sides, the border has been associated with a huge amount of mutual ignorance, prejudice, hatred and phobia. Consequently both communities have been both deliberately ignoring and avoiding each other. The psychological impact of the border has definitely been negative and quite detrimental to the development of the areas concerned and the comfort and safety of the people who have lived in those areas.

According to Avila Kilmurray[1] , Director of the Northern Ireland Voluntary Trust, the major difficulty that border people have had is seeing the other’s point of view as valid. This attitude derives from a tribal identity and a self-centered approach to one’s territory. Looking back to the period of the Troubles she expresses her dismay : “How did we ever reach the stage of people killing and defending each other in the street and country roads? Is any line on the map worth this?”

Border infrastructures were removed in the wake of the 10 April 1998 Good Friday Agreement. Over the past twenty years or so the border has gradually become inconspicuous like many interstate borders in the European Union.There are no physical barriers, no border posts, no checks on anyone or any goods that make their way from one side to the other.

Nearly everyone would agree that reintroducing them is something unthinkable. Traffic which has been flowing unimpeded for nearly two decades may be considerably delayed with border checks likely to become choke points. They would hamper the numerous exchanges and trade connections and seriously damage the closely interconnected economies North and South of the island[2]. They would be likely to generate frictions and eventually cause a casus belli due to the political background of the Northern province and the legacy of the thirty years’ conflict that opposed Republicans and Loyalists.

A fundamental achievement of the Good Friday Agreement has been north-south cooperation which developed to such an extent that it largely benefited both economies North and South.

A guarantee against a hard border

   During the first phase of the brexit negociations the gap widened between British and EU-Irish positions. While Brussels insisted that there should be a formal commitment to absolutely protect the peace process and all the benefits of the Good Friday Agreement, London was referring to specific customs arrangements exempting SMEs, “trusted trader” schemes and technological devices that would make the land border “as seamless and as frictionless as possible” along with the idea of a new, deep and special partnership between the United Kingdom and the European Union.  On 17 November the Irish Taoiseach declared that Ireland was not going to “take a leap in the dark”. In November 2017 realizing that no real progress had been made as regards the future of the Irish border, Irish and European officials started working on a new text which came out on 8 November as a working paper.

The key point was that the only way to avoid a hard border, protect the Good Friday Agreement, North–South cooperation and the all-island economy, was to keep Northern Ireland in the Single Market for goods and in the Customs Union, a demand that was to be later identified as the “backstop”.

On 4 December 2017, following reports that the British government was about to agree a deal with the European Union that would allow for “continuing regulatory alignment in customs and trade practices across the island of Ireland” the Democratic Unionist Party[3] warned it would not accept a Brexit deal which “separates Northern Ireland economically or politically from the rest of the United Kingdom”. Its leader Arlene Foster insisted that Northern Ireland must leave the EU on the same terms as the rest of the UK. Theresa May, whose political survival depends on the Democratic Unionist Party, following the “Confidence and supply Agreement”, declared it was a constitutional threat to the Integrity of the United Kingdom.

A joint report was eventually produced on 8 december 2017[4]. It was different from the original version and provided that “the whole United Kingdom, and not Northern Ireland only, would be maintained in full alignment with the rules of the Internal Market and the Customs Union[5]” without clearly indicating how it would be achieved.  The negociations between the United Kingdom and the European Union being based on the principle that “nothing is agreed until everything is agreed”, the compromise which signalled that the Brexit talks could move on to the next phase was anything but binding and the Irish border issue unresolved.

Proposals and counterproposals

   The option of last resort that had been agreed in December 2017 actually gave way to a lot of wrangling and controversies. British and European negociators struggled to find operative tools that would both fulfil the commitment to keep the land border open and respect the political interests and sensitivities of all the interested parties.

In early February 2018, Michel Barnier again proposed that, if a better solution involving the whole UK was not found before the end of the transition period in December 2020, Northern Ireland alone would effectively remain in the EU economic space for as long as a better solution hadn’t been found. The main problem with the suggested arrangement was that it would create a customs border in the Irish Sea between Northern Ireland and the rest of the UK.

Theresa May who, three months earlier in December 2017, had agreed in principle to the idea of a backstop for Northern Ireland, strongly rejected the EU’s renewed proposal as a threat to the “constitutional integrity” of her country claiming that “no UK prime minister could agree to it”.  So did Arlene Foster, leader of Northern Ireland’s Democratic Unionist Party, who insisted that “the entirety of the UK should be leaving the single market and the customs union” and threatened to withdraw her parliamentary support on which May’s government relied if Northern Ireland was treated differently to the UK after Brexit.

In May 2018 Theresa May put forward an alternative to customs posts along the Irish frontier called maximum facilitation or “max fac”. It involved the use of technology through electronic customs registration, screening techniques and even a decentralized digital currency that could be used on the peer-to-peer bitcoin network. This solution involving futuristic technology to make the border frictionless was rejected by the Europeans as unrealistic and the Jacques Delors institute jeered it down as ” the fiction of the frictionless border”.

In June 2018, the British government reiterated its demand for its own backstop arrangement which would apply to the whole country and not just to Northern Ireland. The entire territory of the UK and the Channel Islands would remain part of the customs territory of the European Union, even after the end of the transition period in December 2020. 

One month later, in July 2018, a new brexit plan on the future relationship between the United Kingdom and the European Union was agreed at Chequers, the Prime Minister’s country house. The White Paper produced by the British Cabinet laid out a free trade area for goods to maintain frictionless trade supported by a common rulebook and a new facilitated customs arrangement. The Chequers proposal was rejected by the EU as unworkable and bound to undermine the single market whose four fredoms of goods, capital, services, and labour are considered to be indivisible.

The European Union and the United kingdom appeared to be deadlocked on the Irish border issue. Theresa May would stick to her red lines-no customs union, no single market-which meant honouring the result of the referendum. She insisted that the Irish border issue could be solved later in the talks on the future commercial relation between the EU and the UK but she had no coherent plan whatsoever on what it would be. Irish Taoiseach Leo Varadkar called for a guarantee of no hard border which would have to be in the Withdrawal Agreement, assuring that there would be no divergence from the rules of the single market and the customs union for Northern Ireland. Brussels remained firm on the principle that the UK could not have free movement of goods without also enforcing free movement of people.

In order to ensure that there should be no return to a hard border Theresa May had to agree, albeit reluctantly, to a temporary backstop whose terms and conditions, she insisted, would not play a part in a permanent deal with the EU.  It meant that the whole UK would, for an indefinite period of time, remain in close alignment with the EU, which was precisely what she had persistenty dismissed.

A joint statement was signed on 11 March 2018 between Theresa May and Jean-Claude Jucker. It promised that a specific negotiating track would be established as part of the negociations. This track was meant to examine and assess all the existing and potential facilitative arrangements and technologies that could possibly replace the backstop. The assessments would consist of an evaluation of the practicability of the various devices that could be put in place, given the unique circumstances of Northern Ireland.

The backstop plan

   The Withdrawal Agreement reached between British and European negociators on 14 November 2018, includes a Protocol on Ireland and Northern Ireland with all the provisions on how to avoid a hard border with the so-called “backstop” solution. The European and Irish authorities have insisted that the planned mechanism must remain part of the treaty.

The word “backstop” comes from the sport of cricket, although it is rarely used nowadays. It refers to a fielder positioned directly behind the wicket-keeper in case he misses the ball. The term was picked up later by baseball meaning a wall behind the batter to stop foul balls from striking the crowd.

The Irish backstop, which has been considered as a safety net or an insurance policy, is a temporary customs arrangement between the UK and EU which would create a single EU-UK customs territory. Its aim is to ensure that, whatever the circumstances, there will be no hard border between Ireland and Northern Ireland and that the rights enshrined in the Good Friday Agreement will be protected along with North-South cooperation, the single Electricity Market and the all-island economy.

The backstop also means that the EU’s common external tariff (CET) would be applied at the UK’s external border, alongside the Union Customs Code (UCC) and such other provisions of the Common Commercial Policy that are required to enable the temporary customs arrangement to function. It would provide for the continuation of the Common Travel Area and also imply the elimination of tariffs, quotas, checks on rules of origin and customs processes on all UK-EU trade at the Irish border. There would be additional provisions for Northern Ireland including regulatory arrangements related to the single market on goods.

The withdrawal agreement prevents the UK from leaving the backstop unilaterally. To do so, either side would have to go to a Joint Committee which can consult joint UK-Ireland institutions.

Response to the backstop

   The withdrawal Agreement faced immediate hostility amid British MPs mainly on account of the backstop provision which became the focus of opposition to May’s brexit deal. Opponents to the withdrawal agreement resent the fact that the backstop is open-ended. They fear tthat the United Kingdom might be « trapped » in an indefinite customs union membership.

The Democratic Unionist Party led by Arlene Foster called for the backstop to be dropped immediately. So did the hard brexiteers from the ERG (European Research Group) such as David Rees-Mogg and David Davis.

The backstop triggered even more controversy among Conservative MPs after the Attorney’s general legal advice was known.

As a government minister, the Attorney General, is the chief legal adviser of the Crown and its government. His role consists in warning the government on any legal repercussions of their decisions, either orally or in writing. Attorney General Geoffrey Cox was asked to give legal advice on the Withdrawal Agreement and more specifically on the backstop. The total statement was published under the pressure of MPs who had found the government in contempt of Parliament for having refused to publish the Attorney General’s full analysis[6].

In the six page document, eventually released on 5 December 2018, Geoffrey Cox indicated that : “We are indefinitely committed to it (the backstop) if it came into force. There is no point in my trying any more than the government trying to disguise that fact », while at the same time declaring “I am prepared to lend my support to this agreement because I do not believe that we are likely to be entrapped in it permanently”.

In the wake of such statement, a large number of conservative MPs pledged to vote against the government’s deal unless the backstop was removed. They claimed that the backstop could tie the UK to European rules indefinitely while the UK would have no say in them. Brexiteers have always hated this provision and argue that it compromises British independence. They would like their country to be able to leave the customs union of its own will.  As for the members of the DUP, they are also vehemently opposed to the backstop which, according to them, poses a threat to the integrity of the Union by creating a border between Northern Ireland and the rest of the United Kingdom. They indicated that they could back Theresa May’s deal if either the backstop was removed or there was a time-limit to it or a unilateral exit clause for the United Kingdom.

The vote on the withdrawal agreeement which set out the terms of Britain’s exit from the EU on 29 March 2019 was originally due to take place in December 2018. It was actually delayed by the Prime Minister who decided to try and win the support of more MPs.

The vote eventually took place on 15 January 2019 and was rejected by 230 votes – the largest defeat for a sitting government in history. The next day on 16 January Labour leader Jeremy Corbyn tabled a motion of no confidence against the government, hoping it could trigger a general election. The confidence vote however failed and what followed was an attempt on the part of Parliament to take over government via a series of amendments meant to reach some kind of consensus in Parliament.

Looking fo alternative arrangements

   On 29 January Graham Brady, a Conservative backbencher tabled an amendment asking the govenrment to seek alternative arrangements to the backstop which could avoid a hard border. On 30 January 2019 MPs voted for the amendment by 317 votes to 301. It meant that the government had a mandate to negociate some changes in the backstop provision which would make it more acceptable to Parliament.Theresa May then announced the establishment of an Alternative Arrangements Working Group which would investigate other options for avoiding a hard border. The Secretary of State for Exiting the EU, Stephen Barclay, and other government Ministers along with a number of backbench MPs would look for “alternative arrangements” that might include “a unilateral exit mechanism or a time limit to the backstop”.

One proposal, commonly known as the Malthouse Compromise[7], emerged overnight in Westminster with the backing of several ministers both Brexiters and remainers, including Jacob Rees-Mogg and Nicky Morgan. It would involve a redrafting of the backstop, a delay of Brexit until May 22 and an extension of the transition period until 2021. It would rely on technology, customs techniques and enforcement away from the border in place of regulatory alignment.

The plan consisting of a new protocol also proposed a “managed no-deal” in case the backstop could not be renegociated. It was rejected by the British Parliament on 13 March 2019 with 374 votes against compared to 164 votes for. Since the backstop is part of the Withdrawal agreement it would have implied reopening the Agreement. But the position of the European Union has always been uncompromising. European Council President Tusk and several EU leaders have made it clear the withdrawal agreement – negotiated over the last two years and signed by Theresa May herself and the heads of government from the other 27 EU countries – was not open for renegociation.

Among other alternative arrangements the “Max Fac” model which involved the use of new technology and customs procedures involving trusted trader schemes and numberplate recognition was still favoured by the hard brexiteers in spite of being rejected by European officials.

On 11 March 2019 the Northern Ireland Affairs committee published its interim report entitled “Implications of the EU withdrawal agreement and the backstop for Northern Ireland inquiry”. After visiting the Swiss border at Basel, listening to Norwegian and Gibraltarian officials and examining other models such as the US-Canada border, the members of the committee admitted that none of these models could meet Northern Ireland’s security imperative and remove the need for a physical infrastructure. The highly sopophisticated and bespoke arrangements needed had neither been designed, nor tested nor implemented yet. The committee also concluded that technical solutions to the Northern Ireland border would be possible if all sides adopted a shared position of trust and goodwill.

Brexiteers have always hated the idea that the UK could not leave the backstop without EU approval. They would like to see a “sunset clause ” added into the backstop, that is an expiry date which would put an end to this transitory provision, with the risk of a return to border infrastructure. The idea of fixing a time limit to the backstop- a sort of backstop to the backstop- to make sure that it would not “endure indefinitely” was rejected by European officials on the grounds that it would defeat the whole purpose of the backstop[8].  Its existence is meant to be temporary and can only come to an end when phase 2 of the brexit negociations on the new trade relation between the UK and the EU will be completed. Given the numerous difficulties and delays in negociating phase 1, how could one predict how long phase 2 could last?

There was the idea of a backstop covering only Northern Ireland and not the whole of the UK which was proposed by Michel Barnier in February 2018. This offer infuriated the DUP which thinks that the backstop could split Northern Ireland from Britain and dreads that any differential treatment of Northern Ireland within the UK might signal a process moving towards a united Ireland.  Even though the DUP -which campaigned for brexit- is not representative of a majority in Northern Ireland where 55,8% of the electorate voted for remain, it has exercised a huge influcence over the Prime Minister and the brexit process   since it passed a deal with the Conservatives after the 2017 snap election.

Another alternative would be to agree on a period of transition that would be long enough to develop the technology to make checks, not at the border but at ports, warehouses and on the roads which both the EU and Brexiteers think is theoretically feasible, but not technically available yet. 

The Political declaration which is attached to the Withdrawal Agreement sets out some aspects of the long-term relationship between the UK and the EU including the possibility of a customs union. There is a clear aspiration for a close and cooperative relation but it is vague enough to encompass a wide range of different scenarios.

Among alternative suggestions the simplest way of solving the backstop connundrum and avoid a hard border would be to remain in the Customs Union.  The option of a UK-EU customs union has been recommended by the the think-ank EconPol Europe[9] which believes it would be the best way of avoiding a demaging hard brexit. It would amount to a comprehensive and permanent backstop, meaning a much softer brexit along with the UK’s inability to strike its own trade deals with its partners. Theresa May who used to claim a clean break from the customs union in order to pursue an independent post brexit trade policy seemed quite reluctant to the idea of pursuing cross-party support for a “soft Brexit” that could split her own party. Her late move in favour of negociations between her government and the labour party has not led to any compromise yet. The labour representatives have actually blamed the government for sticking to its red lines and being unwilling to move on a number of key areas, particularly on the possibility of a customs union with the EU after Brexit.

Belated and hurried initiatives

   Theresa May had promised to get changes and assurances from the Europeans about the backstop to make her deal more palatable to her party members[10]. 

Attorney General Geoffrey Cox, who had previously warned that the backstop might trap the UK in a customs union forever, attepted to secure legally binding additions from Brussels. His role appeared crucial in solving the logjam by securing a time limit or a unilateral mechanism for the Irish backstop. He argued that the good faith of the United Kingdom was enough to justify a unilateral withdrawal from the backstop. He also claimed that if Northern Ireland citizens were still subject to the single market without being represented in the European Parliament it would be a breach of the European Convention of Human Rights. The Attorney General soon gave up his attempts to secure a time limit or a unitlateral exit mechanism for the Irish backstop. The major problem centered around the arbitration system required to settle potential disputes in case trade negociations broke down. The demand for an arbitration panel outside the jurisdiction of the European Court of Justice by the negociators has been resisted by the EU. The Attorney General failed to make any breakthrough and antagonized European officials with his “bluster” and legal rhetoric.

After having declared that the negociations with the EU were in a deadlock, Theresa May rushed to Strasbourg to try and wrench from her European partners some concessions, which she hoped would persuade hard-line Brexiteers that Britain would not get stuck in the so-called Irish backstop.

During the late night talks in Strasbourg after two hours’ discussions Theresa May and European Commission president Jean-Claude Juncker signed a joint interpretive instrument on the withdrawal agreement along with a joint statement on the political declaration.

The joint statement reflects the UK and the EU’s commitment to work to replace the backstop with alternative arrangements by December 2020.

The interpretative legally binding instrument is said to have the same legal status as the Withdrawal Agreement. It provides confirmation that the EU cannot trap the UK indefinitely and if it attempted to do that it would be a breach of the legally binding commitments both sides have agreed. If the EU acted that way the UK could rely on this explicit breach to launch a formal dispute through independent arbitration which ultimately suspend the backstop protocol.

In her unilateral declaration Mrs May cliamed that clear legal changes had been made. “What we have secured is that the backstop cannot be indefinite » she said. She insisted that “there would be nothing to prevent the UK instigating measures that would ultimately dis-apply the backstop”.

Conclusion

   The political crisis that led to the collapse of the Northern Ireland Executive on 9 January 2017 with the resignation of Martin McGuinness as Deputy First Minister deprived the Northern province of a genuine voice in the brexit negociations. British Prime Minister Theresa May’s Conservative government relies on the political support from Northern Ireland’s Democratic Unionist Party (DUP) to maintain a majority in the British parliament, which has given the party an outsized role in the Brexit negotiations.

Although Northern Ireland was rarely mentioned during the Brexit referendum campaign, the Irish border issue soon became the thorniest issue in the negotiations over the Withdrawal Agreement. Given Theresa May’s choice of a hard brexit the backstop has appeared vital to the safeguard of the peace process that gave way to the Good Friday Agreement and all the political economic and social  benefits that flowed from it. The conflict which normally ended with the Good Friday Agreement in 1998 left a deep psychological impact on the Northern Ireland population. The explosion of a car bomb in Derry/Londonderry in January 2019 and the murder of journalist Lyra McKee by dissident republicans on 18 April 2019 show that the threat of a return to violence should not be overlooked. According to research released by the Irish Times[11] dissident republican groups such as Soaradh[12], the Continuity IRA and the 32 County Sovereignty Movement operate online networks to recruit new members and spread propaganda.

With her deal being defeated three times on 15 January, 12 March and 25 March mainly on account of the backstop it is quite difficult to see where the UK is heading to. It seems highly unlikely that cross-party talks will help break the brexit impasse. If the backstop is dead as many people tend to believe, an alternative solution still has to be agreed to avoid a hard border on the island of Ireland.

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[1] Avila Kilmurray who helped found the Northern Ireland Women’s Coalition, took part in the negotiation talks that led to the Good Friday Agreement. She was Director of the Community Foundation for Northern Ireland which focused on community action and peace building over the period 1994-2014. Interview 12 July 2014.

[2] In September 2017 the House of Commons Northern Ireland Affairs Committee had identified 142 areas of across-the-board cooperation that flowed from the Good Friday Agreement. It therefore became obvious that the brexit process would definitely disrupt North-South cooperation.

[3] In the wake of the 2017 snap election which resulted in a « hung Parliament » and a Conservative minority government, the Democratic Unionist Party (DUP) agreed to form a coalition with the Conservatives and provide them with an overall majority with the addition of its ten elected members. Following the negociations between the two parties, the Confidence and Support Agreement was signed and published on 26 June 2017.

[4] This document is not legally binding under the terms of the Article 50 of the Treaty of the European Union nor under the Vienna Convention on the Law of Treaties.

[5] Paragraph 49 of the report, which deals with the question of North-South cooperation and the means for preventing a hard border, indicates that : The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

[6] The shadow attorney general Nick Thomas-Symonds accused Geoffrey Cox of hiding his full legal advice on Theresa May’s Brexit deal “for fear of the political consequences”.

[7] The initiative has been called the “Malthouse compromise”, after the housing minister Kit Malthouse, who entreated both remainers and hard brexiteers to engage in discussions.

[8] In January 2019 Poland’s foreign minister was the only European official suggesting a five-year limit to the backstop.

[9] Hard Brexit ahead: breaking the deadlock, January 31, 2019  | Policy Brief | News. http://www.econpol.eu/news_20190131,

[10] During the late night talks in Strasbourg after two hours’ discussions Theresa May and European Commission president Jean-Claude Juncker signed a joint interpretive instrument on the withdrawal agreement along with a joint statement on the political declaration.

The interpretive instrument is said to have the same legal status as the Withdrawal Agreement. It provides confirmation that the EU cannot trap the UK indefinitely and if it attempted to do that it would be a breach of the legally binding commitments both sides have agreed.

If the EU acted that way the UK could rely on this explicit breach to launch a formal dispute through independent arbitration. It would ultimately suspend the backstop protocol.

[11] Irish Times, Dissident republicans operate ‘broad unsophisticad online networks’, Wed. April 24 2019.

[12] Interview with Saoradh chairperson, European University Institute, Dieter Reinish, 1st December 2018.

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