Westminster conversation about Brexit often suffers a time lag. MPs frequently speak with surprise about things that actually happened months ago and which are regarded as old, established facts in Brussels and policy wonk-world. The backstop is the best example: outlined in the December 2017 Joint Report of the UK and EU negotiators, its meaning and necessity still came as a novelty to some MPs – resigning cabinet ministers included – in June; and to others in November. (The 2017 election result is another instance: it took many Tory MPs at least a year to realise it meant there could be no Commons majority for the hardest form of Brexit; some still haven’t worked that out.) With that in mind, here’s a guess about the next set of facts that could soon surprise MPs, and in a way that helps get Theresa May’s deal through the Commons in the end.
Together, these facts tell one story that really hasn’t been told well enough around Westminster: the backstop isn’t a trap the EU is trying to spring, isn’t all bad for Britain and might actually offer some – limited – advantages alongside its costs. So here is my handy guide for MPs and others, five easy facts showing how you can Learn to Stop Worrying and Love the Backstop.
1: The UK wanted this; the EU didn’t
The biggest thing that Westminster is missing is that an all-UK backstop is a win for Britain. The EU wanted to limit the backstop to Northern Ireland, but backed down in the end. That’s hard to square with the narrative of a failed UK negotiating strategy. Why didn’t the EU want the whole of the UK in the backstop? That takes us to our next fact.
2: The backstop breaks the EU’s fundamental rules – and in the UK’s favour
The sacred principle of the EU is that the four freedoms (allowing the free movement of goods, services, labour, capital) are indivisible. That scuppered David Cameron’s attempt to curb the free movement of people while retaining UK membership of the EU. It is also the basis for all those EU warnings about “no cherry picking”.
Yet the backstop would allow the UK to pick a cherry from the EU basket: the tariff-free movement of goods, because the UK would remain (mostly) in the customs union.
The value of this shouldn’t be overstated: the services that make up 80 per cent of the UK economy aren’t included. (The excessive UK political focus on goods over services is an oddity that should be explored more.) But the central point here is that the backstop would see the EU giving the UK something it doesn’t really want to give away, without getting much in return. (EU nationals would lose their free access to the UK labour market; the UK wouldn’t be paying into the EU Budget). Partial access to the single market, no free movement of people and no EU membership fees: isn’t that what the Brexiteers promised…?
3: The backstop lets Britain take back control
Consider that 80 per cent of the UK economy, our services sector. It’s not covered by the backstop. So under the backstop, the UK would be — to use the language of some Leavers — “free” to develop its own rules and regulations for most of its economy without legal reference to the EU. Whether we would actually want to do that is an open question, for many reasons. But the point here is that people claiming the backstop would constrain the UK’s scope for action should have a closer look at the numbers.
To be fair, the backstop does put some constraints on the UK over policy, to ensure the so-called “level playing field” between UK and EU firms within the customs area. There are three parts to this: state aid; environmental standards; labour rights. The first shouldn’t worry anyone except Jeremy Corbyn: EU state aid rules are an essentially sensible Anglo-Saxon affair meant to stop governments propping up failing but favoured domestic firms. As far as I know, not many Tory MPs worried about the backstop are keen on state subsidy of industry.
The important thing about the other bits of the level playing field is that they’re pretty vague and possibly toothless. Under “non-regression” clauses, the UK would promise not to undercut the EU by relaxing environmental or employment rules on UK firms. But who decides if the UK is meeting that “common standard”? On the environment at least, much of that job would fall to a new UK environmental watchdog, independent of government and able to take ministers to court.
The creation of such a new and powerful quango would be no small thing, but the key point here is that even under the backstop rules, quite a lot of “control” over environment regulations would reside in the UK. Britain, in other words, would be “free” from some of the European greenery that so infuriates some Brexiteers. Again, this scope shouldn’t be overstated. But would Britain really want to rip up all the rules that protect consumers and the environment from toxins and industrial pollution? (See this for more, if you’re really keen…)
4. Fish for freedom?
Fish matter to the EU. And they’re not in the backstop. The EU would have no fishing rights in UK waters under the backstop. And the UK would be out of the common fisheries policy system of quotas and theoretically able to allow – if it chose – British fleets to ravage British stocks to extinction. Again, I don’t know if anyone sensible would want to do so. But we could if we wanted to. Meanwhile, French, Dutch and Danish boats would be kept out of UK waters. For context: in 2017, British boats caught around £800m worth of fish in British waters; the French caught £170m worth of fish in UK waters, while the Dutch and Danes caught about £90m each. That’s £350m of British fish that’s off-limits to EU boats under the backstop. Quite a loss to fishing groups that have real political clout at home. Hence Emmanuel Macron’s noisy grumbling about fish and the backstop.
Some UK reporting of the French position suggests that Macron is threatening to “trap” Britain in the backstop forever unless French fleets get access to UK waters. But look at that position again and you see that Macron is actually revealing his hand: the longer the backstop was in place, the greater the pressure on governments in countries such as France from their domestic fishing lobbies to strike a new deal with the UK. Far from threatening to trap Britain in the backstop, he’s signalling a desire to get Britain out of the backstop. Yes, we’d pay for our exit in fishing rights (“Adieu, and thanks for all the fish”) but nothing in life is free, chums. And if you’re a Brexiteer who claims to care about British fishing, you really should accept that any deal with the EU (which buys two thirds of the British catch) is better than no deal.
5. There is an exit door – if we really want it
Talking of exits, there is a formal way out of the backstop. If Britain tires of keeping the UK mainland in the customs union, it can agree with the EU that only Northern Ireland should be included. This is the “backstop to the backstop”. Given everything I’ve just written, you can, I hope, see why the EU would be quite open to that.
But of course, the question is would the UK want it? Theresa May says not: avoiding a customs border between the mainland and Northern Ireland is a red line for her, and for the DUP. But the key point here is that those are British domestic lines, not EU strictures. If the UK does enter the backstop, there will be a way out – if the UK is willing to take it. I’m not saying it should do so (I’m essentially a small-u unionist) but I do note that the Union appears to survive differences in, say, abortion laws between NI and the rest; maybe different customs rules aren’t utterly unthinkable. I also wonder how that issue would look to a PM who wasn’t dependent on the DUP’s Commons votes. The point is that if you call this a trap or a cage, you have to concede it’s a cage whose bars are made of British political necessities, not EU wiles.
What does this all add up to? I am not, to be clear, suggesting the backstop would be a land of milk and honey. But that’s at least in part because milk and honey will be in short supply whatever form of Brexit we get: there are no really good deals to be had here. All we can do is try to choose the least bad option.
Ending up in the backstop is certainly less bad than rejecting May’s deal and leaving with no deal. It might well, to Brexiteers and Leave voters, also be preferable to the alternative path that could open up under that deal: extending the transition period until a full UK-EU relationship is agreed. (As an aside, Henry Newman of Open Europe makes a very good point about the strategic unwisdom of treating the backstop as a horror you must avoid at all costs: doing so tells the EU you’ll accept anything else to avoid the backstop, and so weakens the UK position in future relationship talks.)
Contrary to what you might have heard, the backstop isn’t a trap, a sinister contrivance by a malign and powerful EU plotting to capture Britain. It’s the consequence of the compromises (domestic, diplomatic and economic) that are unavoidable in any serious international negotiation. The backstop is also like much else about Brexit: complicated, technical and often quite boring. But it’s also important. Too important to be debated using silly simplifications, terms like “trap” and “vassalage” and “slave state”.
In just a few days, MPs could be making decisions that will shape Britain’s economy and place in the world for years or even decades. A lot of those MPs say the backstop is a big factor in their decisions. And a lot of the things said about the backstop have been, at best, mistaken and at worst deliberately misleading. We can only hope that MPs catch up with the facts about the backstop before we all run out of time.