UK Prime Minister Pushes European Council President to Ditch Irish Backstop; EU Cold Shoulders Request

On 19 August 2019, the UK’s Prime Minister Boris Johnson wrote to the President of the European Council, Donald Tusk, seeking to ditch the so-called Irish border backstop from the by now infamous Brexit withdrawal agreement. Despite his predecessor Theresa May’s several and infamous attempts to have the backstop clause removed, a new push is being made for its abandonment yet again, with Johnson claiming that the mechanism is “inconsistent” with his vision of the UK’s future relationship with the EU. However, despite Boris Johnson’s confidence over being able to find agreement with the EU, his letter has been cold-shouldered, receiving a largely negative reception. With the final exit date of 31 October fast approaching, the UK’s chances of crashing out of the EU without a deal seem higher than ever.

Hong Kong traders will likely be aware that, after a hard Brexit (also known as a no-deal Brexit), Northern Ireland and the Republic of Ireland could well be in different customs and regulatory regimes. This means that, without arrangements in place, products will have to be checked at their border. To avoid border posts, which – it has been argued – could threaten the peace process in Northern Ireland, Theresa May and the EU had agreed on the Irish backstop. In the event that no free trade deal was agreed that avoided a hard border, this insurance policy would effectively keep the UK and EU in a customs union.

A majority of British MPs, and certainly Mr. Johnson (along with his hard-Brexit favouring Cabinet), have long been opposed to the backstop, not least because it could put a stop to the UK making some of its own trade deals with third countries, such as the US.

In his 19 August letter to Donald Tusk, Mr. Johnson announced that it was his “highest priority” to leave with a deal, pledging “energy and determination” to arrive at a new agreement. Yet, he also outlined why the backstop insurance policy was repugnant to his vision of an independent UK. “When the UK leaves the EU and after any transition period, we will leave the single market and the customs union,” he wrote. “Although we will remain committed to world-class environmental, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.”

Alarmingly, his comment about the UK’s laws potentially diverging from those of the EU seem in marked contrast to his predecessor Mrs. May’s policy. Her Government had undertaken to align the UK’s rules to those of the EU in a post-Brexit scenario. It is alarming as, among other matters, it adds another thread of uncertainty for cross-border traders including those hailing from Hong Kong. With differing sets of rules, product compliance may become a complex and costly procedure when traders sell their goods across multiple European jurisdictions which include the UK’s.

Despite Boris Johnson’s confidence about being able to change the EU’s mind on the backstop, his letter has met with a cold reception. One senior EU official is quoted as being “amazed” at the letter’s content, pointing out that there were no alternative legal solutions suggested, for managing the Irish border. The official commented that Prime Minister Johnson was – in effect – demanding that the EU relax its external border in order to allow the UK to be treated differently. The official’s perplexed response was, it is stated, “how can that ever work?”.

The EU has repeatedly said that the Irish backstop cannot be removed from the withdrawal agreement and has also specifically ruled out its – or the withdrawal agreement’s – renegotiation. If the UK then leaves with no deal and, thereafter, were to seek a free trade agreement (which the UK is expected to do), the EU has said that it will not begin negotiations until the issue of the Irish border is settled.

Boris Johnson also spoke with his Irish counterpart, Taoiseach Leo Varadkar, on 19 August. While both sides have committed to meet in the coming days, Mr. Varadkar has insisted that the withdrawal agreement could not be renegotiated, and that the backstop would not be removed. The Republic of Ireland’s response to Johnson’s position on the backstop is that “the very purpose of the backstop is to maintain the status quo, by ensuring free movement and no hard border on the island of Ireland, which is central to the Good Friday Agreement.” Brexit itself was seen as a threat to the Good Friday pact, according to the same official. “Unfortunately this letter does not set out what the so-called ‘alternative arrangements’ could or would be. Unless and until there are viable alternatives, the need for the backstop insurance policy is clear.”

Johnson has previously said that there are "abundant technical fixes" to avoid checks at the border. Yet, he has had to concede that there is "no single magic bullet" while only vaguely pointing out that there is a "wealth of solutions" instead.

Boris Johnson is scheduled to soon meet with some of his European counterparts, in his continued (some argue fruitless) quest to ditch the backstop. He will argue that his country’s parliament will not be able to stop a no-deal Brexit, and that the EU will no doubt suffer if the UK crashes out. It is unlikely that European leaders will be moved by such arguments, particularly as it is virtually universally believed that by far the biggest loser in this sorry state of affairs will be the UK itself.