Why does the EU insist on the backstop when it is clear in a no deal scenario they still intend to keep an open border?

9

The controversial backstop is seen by the hard-line Brexiteers as a trap by the EU to keep Northern Ireland permanently in a customs union without an option to get out if the UK wanted. In a no deal scenario, both the Irish PM and the EU presidents have said there would still be no hard border between Ireland and Northern Ireland.

So why do they insist on having it in the withdrawal agreement?

Toby

Posted 2019-04-04T16:56:44.000

Reputation: 97

The Irish backstop makes little sense to me either. Even if you take the opposite view that a no-deal Brexit would make a hard border more likely, that just makes the backstop demand seem even more illogical, because if the UK will not accept it and crashes out, then it increases the chances of the outcome it is intended to prevent. – Time4Tea – 2019-04-04T17:05:00.477

I think part of it is that, at this point, the EU can't be seen to lose face by compromising, because it will make them look weak. – Time4Tea – 2019-04-04T17:05:56.197

exactly @Time4Tea I have been at loss as to any logical argument for it unless just to score points – Toby – 2019-04-04T17:24:47.930

4

The UK and the EU agreed to the idea of backstop, which basically is a legal guarantee of the verbal agreement you mentioned of not putting back an hard border. The problem is that for political reasons the DUP opposes the idea. So the backstop is controversial for internal political reason of the UK government (see Brexit: what is the UK's backstop proposal?). A legal agreement is better than a verbal agreement, because an actual law has a real power that a verbal agreement lacks.

– gabriele – 2019-04-04T17:38:32.867

1I'm not so sure the intent is bad as you assume. It took a long time to get peace in Ireland. – Karlomanio – 2019-04-04T17:39:45.763

1@gabriele it's not only the DUP...The Hard brexiteers oppose it too simply because they believe it's a template for a permanent customs union and that even though the intention is to avoid a hard border, this can be solved by alternative arrangements. Thing is in a no deal scenario, the UK has said it wont return to hard, same as EU&NI even though that should be the proper thing to do. So, if in a no deal scenario, the border can still be invisible or at least there will be a genuine attempt at making it invisible from both sides, why must it be there? – Toby – 2019-04-04T17:51:01.407

5I think, as @gabriele said, the EU and Ireland want a legal guarantee of no hard border, not just a verbal agreement and good intentions. However, many on the UK side see it as a possible legal trap. As I said, given the level of opposition to it in the UK, it seems to merely be increasing the risk of what the EU/Ireland (supposedly) want to avoid. – Time4Tea – 2019-04-04T17:54:20.763

Answers

11

For the EU, keeping a border open even if it should be closed from a strictly legal and commercial point of view will impose costs. These might include the import of non-certified products into the internal market, illegal immigration, and more. So they would rather keep the border open under conditions which permit it, i.e. with a "somewhat hard" border between Northern Ireland and the rest of the UK.

I understand why the latter option would be unacceptable from an Ulster Unionist viewpoint, but from an EU viewpoint it solves lots of problems -- the border between the Republic of Ireland and Northern Ireland is open, but the land on the other side of the open border follows common market regulations.

o.m.

Posted 2019-04-04T16:56:44.000

Reputation: 49 884

5

See also: Brexit: Good Friday Agreement 'hard to protect' in a no deal, which is based on an interview with Varadkar, where the latter puts forward that livestock controls would likely need to occur at the border itself. Contrary to the premise behind the question, it is not at all clear that the border would stay open on the EU side.

– Denis de Bernardy – 2019-04-04T18:27:16.423

This is an excellent answer.... I dont know if it would be open either but it is stated by both the UK PM and Irish PM that they wont build a hard border in the event of a no deal. Infact Varadkar said it again today alongside Merkel – Toby – 2019-04-04T18:32:54.723

2Illegal migration is not a big issue for the EU outside of Ireland as there are immigration controls between them. It's also not such a big issue inside the common travel area as Irish and UK citizens are free to live anywhere in the UK and Ireland, there is visa cooperation between the UK and Ireland and UK/EU citizens are likely to have visa-free visits to the EU/UK anyway. For these reasons it shouldn't be a much bigger issue than it is now.

Conversely, VAT may be a substantial issue where it currently isn't (as well as non-certified products and tariff evasion). – Alex Hayward – 2019-04-04T20:38:57.343

6Illegal migration is not an issue at all, not in the slightest. UK citizens have freedom of movement in Ireland regardless of EU treaties. And you cannot use Ireland as a way to get into the EU visa-free for as long as it remains outside the Schengen area. – JonathanReez – 2019-04-04T21:43:53.187

@JonathanReez, consider the 'jungle' in Calais. Should be no issue, but it exists.But the import of uncertified goods is more of a concern. – o.m. – 2019-04-05T04:03:53.710

3@o.m. the Calais jungle existed because illegal immigrants want to enter the UK from the Schengen area, not the other way around. The Irish border is about a lot of things, but immigration is not one of them. – JonathanReez – 2019-04-05T05:47:12.103

7

O.m. is correct, but in a more prosaic representation, relative to no-deal, the backstop pushes the single-market border from the interior of Ireland to the Irish Sea. This is not entirely correct, because the whole UK would be in a more limited customs union with the EU as well. So there's basically a "double pushback" that spreads out the pain of dealing with the customs checks (some get pushed to the Irish Sea, some get pushed even further to the whole UK). With no-deal, all those checks have to be performed somewhere in Ireland (even if not right at the border), where they incur a higher cost for EU, mostly in terms of risks for stirring violence or at least more nationalism in Ireland etc.

Of course the EU needs to hang some carrot for the UK to buy this (as the UK would incur a cost) or at least a stick (worse economic outcome for no-deal). So some of the rest of the Agreement does the carrot part, but it's besides the point of your question, which is limited to EU's motivation for the backstop.


As for "hellbent" that has more to do with EU showing solidarity with Ireland, negotiating tactics, a German sensitivity to borders and Troubles etc.

Germany’s foreign minister, Heiko Maas, was speaking as Ireland’s deputy prime minister, Simon Coveney, said MPs who were planning to vote against Theresa May’s deal needed to stop their “wishful thinking” that the EU would reopen Brexit negotiations.

“Some people call us stubborn, but the truth is avoiding a hard border in Ireland is a fundamental concern for the EU, a union that more than anything else serves one purpose – to build and maintain peace in Europe,” said Maas. [...]

“During the Brexit negotiations, all 27 member states agreed on a common position and stood by it. This unity includes full solidarity with Ireland. We insisted, and still do: a hard border dividing the Irish island is unacceptable." [...] said Maas in a speech to Irish ambassadors in Dublin on Tuesday.

Basically the backstop guarantees a softer border in Ireland compared to no-deal.

Not everyone in Europe was happy with this, Poland in particular raised the idea of a "5-year limited backstop" back in January; Czaputowicz, their foreign minister said:

“Obviously, that would be less beneficial for Ireland than an indefinite backstop, but much better than a no deal Brexit which is unavoidably coming our way”.

According to what Czaputowicz underlined during his comments, the EU has become hostage to Ireland’s government position in the negotiations. “The Irish also gave a pretext to treat the British harshly. Arguably, they thought the UK would at some point agree to an indefinite backstop,” but this did not happen. “Now we have a game of chicken with two cars heading towards each other,” added Czaputowicz, who said this will inevitably mean a process that will lead to a hard border.

but they went back in line quickly after they were disavowed by Germany, Ireland (of course) and the by Brussels. Which as we now now has a contingency plan for the border that isn't that hard, but still riskier (for the EU) than the backstop would be.

The dominant idea in the EU, as expressed by the Irish foreign minister:

“I made it very clear that putting a time limit on an insurance mechanism, which is what the backstop is, effectively means that it’s not a backstop at all. I don’t think that reflects EU thinking in relation to the withdrawal agreement.”

I guess that you look at it from the German perspective, in which the backstop equals peace (at least declaratively), "peace for 5 years" sounds silly. Of course "peace forever or war now" is also not a great slogan. But this is probably where the game of chicken comes in play; the more drastic terminology you use to frame the problem, the more likely it is for the no-deal to seem out of the question.

And this is actually not too far from the actual game of chicken, in which a strategy is

Pre-commitment

One tactic in the game is for one party to signal their intentions convincingly before the game begins. For example, if one party were to ostentatiously disable their steering wheel just before the match, the other party would be compelled to swerve. This shows that, in some circumstances, reducing one's own options can be a good strategy.

Fizz

Posted 2019-04-04T16:56:44.000

Reputation: 76 605

succintly put..I get the play now....If I were the UK I must insist on a time limit backstop....EU has to concede that otherwise it may be better to be in a perpetual No deal scenario and let things shape out from there. It's ridiculous the EU seems to just want to bully the UK – Toby – 2019-04-04T22:34:17.783

4

@Toby: That is correct only if you assume the UK has nothing to gain from the backstop. But that's not certain. Just like in the (theoretical) game of chicken, both sides (UK and Ireland+EU) may lose something if the Troubles come back. The losses might not be same for both sides though.

– Fizz – 2019-04-04T22:46:17.610

interesting perspective...didn't think of it that way. I think you maybe right. – Toby – 2019-04-04T22:55:59.367

1@Toby how is insisting on the right of the UK to renege on agreements and cause problems for Ireland not "bullying Ireland"? – pjc50 – 2019-04-05T12:30:35.137

1

(a vital piece of the puzzle is that Ireland only formally acnowledged the existence of the UK-Ireland border in its current place in 1999. https://en.wikipedia.org/wiki/Nineteenth_Amendment_of_the_Constitution_of_Ireland )

– pjc50 – 2019-04-05T12:33:49.477

2The backstop including the entire UK is entirely at the UK's request. The UK seem to have forgotten that the purpose of the backstop is to prevent trouble in northern Ireland, part of its own territory. It's crazy to present this as a stick that needs some carrot to compensate for it. The backstop is entirely in the UK's interest, except something is so wrong with their democratic representation that they cannot seem to see that. – hkBst – 2019-04-07T07:28:47.130

@hkBst: It's not totally crazy, but there is a large dose of magical thinking in those (hard Brexiteers) who hope to get the effects of the backstop without it. In other words, they hope to "cherry pick" the good effects of the backstop without having to pay anything for it. The main problem is that it's largely unkowable whether the Troubles would return without it.

– Fizz – 2019-04-07T07:32:35.437

@hkBst a free trade area is more preferable than the backstop, in any case the troubles would also affect Ireland too and I daresay even more than the UK. And we dont even know if this will lead to the return of the troubles – Toby – 2019-04-08T15:52:40.643

@pjc50: On the other hand, I claim the disaster was brought about because the EU has not kept its own agreements. The character of the EU today is not the character that I grew up with it having. – Joshua – 2019-08-20T21:29:32.210

5

The UK is leaving the EU, so the EU considers the UK responsible for resolving the issues with the Irish border.

Since a hard border is not an acceptable option, other solutions must be found to solve issues like how the EU can maintain a customs frontier. The EU is concerned that the UK could simply walk away and not provide a solution, enjoying the benefits of "backdoor" access to the EU single market and forcing the EU to fix the problem itself.

The integrity of the single market is extremely important to the EU. The market is over 6 times larger than the UK market, and naturally the EU wants to protect it. Not only from illegal imports from the UK, but from complaints to the WTO that the EU is giving unfair preferential access to the UK by failing to maintain a border.

In sort the EU requires the UK to deal with problems of its own making, instead of trying to pass them off to the EU.

user

Posted 2019-04-04T16:56:44.000

Reputation: 16 552

+1. Interesting to see it laid out like that. It's a lucky thing that May seems more concerned about keeping Northern Ireland and Scotland in the Union than it is about delivering a hard Brexit, else she'd likely have sent off the EU and let them deal with it. – Denis de Bernardy – 2019-04-05T10:08:00.350

1@DenisdeBernardy May's main concerns are her legacy and xenophobia. Her legacy depends on not breaking the Tory party, not setting them up to lose the next election, delivering her brexit deal, and not allowing the UK to break up. Xenophobia requires here to stick to her red line of ending freedom of movement. Nothing else matters to her, all her actions are driven by those two things. – user – 2019-04-05T10:19:36.087

@DenisdeBernardy Why does TM think a No deal endangers the Union? the way I see it a No deal is the best way forward here because it forces the EU to solve the Irish border problem and lays all the consequence on their doorstep – Toby – 2019-04-05T10:38:44.357

@user which is why a no deal scenario is infinitely more attractive than the backstop? Let things shape out from there – Toby – 2019-04-05T10:41:57.937

3@Toby no-deal with wreck the UK economy. Tories would be wiped out at the next election and Scotland would vote for independence, breaking up the UK. Northern Ireland would probably have a border poll and re-join Ireland too. Despite all the bluster she was never going to accept no-deal. – user – 2019-04-05T11:15:58.317

1@user I think you mean the xenophobia of sections of the Tory party. My impression is that May thought the only way she could avoid a rebellion was a deal with the red line of ending freedom of movement. Now that she's had that rebellion anyway, she's gone to Labour to get something that passes, and the ERG are furious that they no longer have the stranglehold on policy. – Caleth – 2019-04-05T12:02:37.397

@user 'No deal will wreck the UK economy' is a Project Fear/EU talking point. The tories will be totally annihilated and never get into power in another 1000 years if Brexit is somehow revoked or doesn't happen. From a tory perspective, No deal is surely better than No brexit. I agree with you that TM does think No deal might break up the UK which is why she has definitively ruled it out and is tacking towards a custom union now, although I dont believe it will result in a Scottish independence or united ireland – Toby – 2019-04-05T12:22:46.167

3@Toby "customs union" is effectively a substitute for reunited Ireland, as it preserves the ability for goods to move across the border. No Deal will wreck the economy, the UK's own briefing papers state as such. It's only the intransigent hardliners who believe that no deal is an acceptable outcome. – pjc50 – 2019-04-05T12:38:10.800

@Caleth May herself is xenophobic, as evidenced by her actions at the Home Office and since. – user – 2019-04-05T13:37:06.010

@Toby pjc50 answers your "project fear" point, but as for the Tory party, they are probably screwed no matter what at this point. They are clinging to the idea that Corbyn is so bad he won't get elected, but the last election suggests otherwise. If they deliver the economic damage will be blamed on them, if they don't deliver the failure to deliver will be blamed on them. There is no way to win, the best May can do is get out and leave someone else to take the fall. – user – 2019-04-05T13:39:23.940

Do you have any references for the first paragraph? I'm surprised the EU doesn't feel it is a joint responsibility. – RedGrittyBrick – 2019-04-05T14:02:18.357

1@RedGrittyBrick why would they think that? The EU didn't vote to leave – Caleth – 2019-04-05T14:22:16.693

@user sadly I don't think the Tory party are going to be screwed, provided they don't split; certainly the polling has hardly budged. They're losing members and their funding is going to come from increasingly narrow and shady sources, but the press back them heavily over Corbyn. – pjc50 – 2019-04-05T14:54:32.383

@pjc50 I take your point on the custom union. The reasoning is if you prioritize sovereignty over trade then a time limited backstop is the best way so that new arrangements can be worked out during the time limit. the EU is stubbornly insisting on the backstop because ostensibly it makes the Irish border solution easier and it's a backdoor way to trap the UK in a permanent customs union. This is why it is hated and rightly so and there is no Genuine reason the EU insists on it rather than spite and probably showing a strong hand. So if a no deal forces the EU to calibrate – Toby – 2019-04-05T15:18:37.560

@pjc50 and evolve the solution then from a leaver that is more preferably to signing a treaty where you are permanently trapped and can't do anything about it. It doesn't have to be that way but If the EU will reject a time limit then the UK should by all means insist on a No deal. Now on a No deal, remember the same people saying it would wreck the economy are also the same people that said the leave vote would wreck the economy too, The civil service is pro remain, same as parliament it's the people that are majority Leavers and if you had a true leaver running the govt things will differ – Toby – 2019-04-05T15:21:34.243

@pjc50 don't get me wrong i'm not saying there wont be costs to the UK but it can be managed with good governance and the effects can be mitigated with proper planning. it's not the doomsday scenario we are made to believe – Toby – 2019-04-05T15:28:24.987

@Toby and what of Irish sovereignty in all this? Including the claim to sovereignty over the whole of the Island of Ireland that was given up on the understanding that there would be no border? – pjc50 – 2019-04-05T15:35:27.050

@pjc50 The UK has already said under no circumstances will there be a border on the island from their side. – Toby – 2019-04-05T15:43:27.373

1

@Toby I'm sure the smuggling industry will be pleased to hear that. https://www.politico.eu/article/brexit-means-good-news-for-irish-smugglers/

– pjc50 – 2019-04-05T15:51:57.490

A backstop with no time limit is no backstop! How would you feel if I agree to not kill you in the next 10minutes and the police thinks this is a fine agreement and leaves? – Josef says Reinstate Monica – 2019-04-08T10:25:50.200

The time limit ideally should be there until a free trade area is agreed with the EU so that the UK can exit the backstop. An indefinite backstop offers no incentive for the EU to quickly hammer out a FT Deal as they are comfortable with the default – Toby – 2019-04-08T15:55:43.953

@Toby that would just allow the UK to wait out the time limit and enjoy all the benefits of single market access with none of the associated responsibilities. The EU would be crazy to agree to that, especially given the way brexiteers are behaving. – user – 2019-04-08T16:04:41.853

@user Lol...well something has to give..can you suggest an appropriate deal then....the backstop is an over-reach and all the more stupid seeing it was suggested by Theresa May. – Toby – 2019-04-08T16:08:52.680

@Toby the UK could stay in the EU. Or stay in the customs union and single market as was originally proposed before the referendum by Nigel Farage. Or propose a realistic non-sci-fi solution to the border issue. – user – 2019-04-08T16:12:13.947

@ The UK has to leave the EU. The EU has to be committed to also solving the border issue too. This can all be worked out if the EU weren't so vindictive – Toby – 2019-04-08T16:24:05.407

@Toby You say it can all be worked out, no-one, including you, has been able to put forward an workable solution. All you do is keep accusing the EU of bad faith for not accepting your non-solution. – user – 2019-04-09T08:01:02.587

@user well let events shape the solutions then rather than a capitulation to the EU. If the EU believes the Backstop time limit is a non solution, then let a no deal occur especially as the EU believes UK will be worst hit so why care? If we have a no deal for 10 years things will resolve on its own without capitulating to them and we can talk when reason-ability and rationality returns from the EU side. – Toby – 2019-04-09T10:09:17.780

@Toby are you asking why they would care about a return to a violent conflict on the island of Ireland or about a third country having an open border with the single market? If so I can't help you. – user – 2019-04-09T10:36:56.983

@nicely put lol.....They(EU) firmly believe they are better off in a no deal so I still don't see why they are trying hard to prevent it and to do so by basically bludgeoning the UK into a customs union rather than a FT deal . Since they believe they will get a united Ireland and that there are minimal trade disruptions to them, they should kick the UK out without the deal. – Toby – 2019-04-09T13:15:07.157

@Toby you think the EU wants no-deal but can't understand why they keep doing things to prevent no-deal? Could it be your assumption is faulty? – user – 2019-04-09T13:51:02.607

@they want it but don't want to make it look like they want it so they are goading the brits so that they are 100% responsible and they come out squeaky clean. – Toby – 2019-04-09T13:54:18.133

@Toby ah it's an elaborate double, no wait, triple cross backstab. They know that we know that they know we know they don't want a deal and it's just an elaborate game of 4D chess to see who ends up holding the can. – user – 2019-04-09T16:07:04.853