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Hard Brexit, No Deal and the Northern Ireland Backstop: What Next for Brexit Negotiations?

Kathryn Simpson

Manchester Metropolitan University

Brexit (still) means Brexit. Yet, the problem the UK Prime Minister Theresa May faces is that the Chequers Deal is too soft for Brexiteers and not soft enough for Remainers. The UK has experienced some political instability with the resignation of senior Cabinet Ministers and narrow governmental wins in Parliament. The difficult passage of Brexit legislation through Westminster has pushed the UK’s negotiating position to a harder stance. As a result, the likelihood of a Hard Brexit or a No-Deal Brexit has increased.

There is a substantial difference between a Hard Brexit and a No-Deal Brexit. A Hard Brexit allows the implementation of a Withdrawal Agreement agreed within the Article 50 process which will allow a Transition Period. This would see the UK continuing to have full access to all EU activity except voting rights until December 2020. From an economic perspective, post-transition, the UK would remain outside of both the EU Single Market and the Customs Union, therefore limiting market access. From a political perspective, UK-EU relations would continue under an agreed framework which would see continued interaction and limited political cooperation. For UK citizens living in EU member states, and vice-versa, an agreed framework will be implemented although there are likely to be significant restrictions over previous rights.

A No-Deal Brexit would see no legal basis for UK-EU relations after 29th March 2019 and would result in immediate and extensive disruption to trade, travel and security cooperation. From an economic perspective, a No-Deal scenario means ambiguity about the future UK-EU relationship, although is likely that economic relations will be much more restrictive until a new trade agreement with the EU can be agreed. From a political perspective, there will be no agreed framework which would likely mean high levels of mistrust, making any future agreement notably more difficult to achieve. The rights of UK citizens living in EU member states, and vice-versa, would be uncertain and possibly based exclusively on unilateral decisions between the UK and EU member states.

Both a Hard Brexit and a No-Deal Brexit have wide-ranging implications for Northern Ireland and the Backstop option which was agreed at the end of Phase One negotiations in December 2017. The Backstop option, which would allow Northern Ireland to remain as part of the Customs Union and European Single Market for goods, will only take effect if the future UK-EU trade deal fails to prevent border checks and controls between the UK and the EU or includes provisions for an open border between Northern Ireland and Ireland. However, the Irish border is about much more than trade – the border region is substantially integrated due to the multi-layered nature of contact and cooperation that exists across it since the 1998 Belfast/Good Friday Agreement and also in the context of shared EU membership. The UK Withdrawal Agreement cannot be finalised without a guarantee to avoid a ‘Hard’ Irish border. A Hard Brexit and a No-Deal Brexit are directly at odds with the Backstop option. Whether the Backstop is specific to Northern Ireland as insisted by the European Commission, or whether it is UK-wide, will only be decided by continued Brexit negotiations.

Brexit is like a Rubik’s Cube; it is multifaceted, complicated and frustrating. The process of negotiating a favourable UK-EU future relationship at the same time as the terms of withdrawal was always going to be a difficult undertaking. The European Council meeting in October is crucial as it will attempt to finalise the UK’s Withdrawal Agreement – the legal basis for UK-EU relations on ‘Brexit Day’ on the 29th March 2019. However, according to a recent survey by the UK in a Changing Europe’s Brexit Policy Panel 64% of academics believe that it is unlikely the UK and the EU will reach a deal on the Withdrawal Agreement at the European Council meeting in October as a consequence of the Irish border question and internal divisions in UK politics. In addition, nearly five out of ten (4.7 to be exact) of those experts believe that the UK will leave the EU with No Deal. Yet, perhaps more pertinent are the findings that a plurality of the Brexit Policy Panel believes that the border between the UK and the EU is in fact likely to be on the island of Ireland. This is despite a legal commitment between both the UK and the EU that there will be no hard border on the island of Ireland. The options for a potential border on the island of Ireland by the Brexit Policy Panel are one which is North-South (35%) with no regulatory border (27%) and an East-West border in the Irish Sea (26%).

The problem faced by those negotiating the current phase of Brexit negotiations is that they focus upon the UK’s future relationship with the EU – an unprecedented and all the more complex negotiation process than Phase One – focusing primarily on trade, but also policy areas such as terrorism, security and defence, and international crime. And the EU has recognised this, with President of the European Council Donald Tusk acknowledging that “the most difficult challenge is still ahead”. Autumn 2018 (the potential for additional European Council summits are already being mooted for November and December in order to broker a deal) is likely to determine whether Brexit will be Hard, Soft or indeed whether the UK will leave the UK with No-Deal. And Northern Ireland is at the centre of that debate.

A shorter version of this blog “Brexit and the Irish Border: The Experts’ Verdict” was published by BBC News Northern Ireland and can be found here.

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