Backstop’s Back Alright: The commercial effect of ignoring the backstop in Brexit talks

September 3, 2019

2 min read

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What's going on here?

The scenario of a no deal Brexit looks to ignore the issue of the backstop in the name of national dignity, but the problems born in the food market are going to be fundamental.

What does this mean?

After Brexit, the frontier between Northern Ireland and the Republic of Ireland will become the only land border between the UK and the EU, which is already politically sensitive due to decades of sectarian violence.

After the Good Friday Agreement, both parties committed to close cooperation. The main reason for this was largely mutual EU (then European Community) membership. During the Brexit negotiations, both the UK and the EU agreed that in all circumstances, no new physical checks or infrastructure should be introduced.

However, the UK made it clear it wanted to leave the EU’s single market and customs union and pursue an independent trade policy. As such, this might render the re-introduction of checks and controls necessary.

The backstop was conceived as an insurance policy, a guarantee that the Irish border would remain open after Brexit through a transition period to avoid instant disruption and allow more time to sort out future UK-EU relations. Should future talks fail to reach a free trade agreement by the end of the transition period, the whole of the UK would form a single customs territory with the EU, but Northern Ireland alone would follow the full EU customs code.

If the UK left the EU this October without a deal, there would be an immediate and certain reinstatement of a land border across the island of Ireland. This outcome is arguably worse than the one that the backstop seeks to avert, where there would at least be a transition phase in which to mitigate the impact of border reinstatement.

Why should law firms care?

The policy has long haunted Brexit negotiations, as hardline Brexiteers fear it could effectively keep the UK tied to the EU indefinitely. Similarly, Boris Johnson pledges to “get rid” of the backstop, arguing that it signs away national economic independence and self-government. Considering the backstop from a commercial perspective, the main effect can be traced to the food industry. 

After a no-deal exit, shipments of animals and animal products exported to the Republic of Ireland from Northern Ireland would need to have a so-called export health certificate (EHC), along with other paperwork that will delay deliveries. Moreover, there are not enough inspectors to deal with the amount of agricultural goods that move across the border each day and there is not enough time to recruit and train new ones. Shipments will be held up, disrupting supply chains and leaving perishable goods to rot if there are not enough officials to sign the forms. These problems are particularly acute in Northern Ireland because supply chains freely run across the border – sometimes a product will cross the border several times during processing. 

Therefore, the legal status and support of food producers from Northern Ireland, a constituency that voted to remain in the EU Referendum by a majority of 56%, is going to be a matter of intense debate.

Report written by Vasiliki Poula

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