Is the backstop permanent or temporary?

Published: 7th Dec 2018

Both the EU and UK say the Irish backstop is intended to be temporary, and it would be if an alternative agreement was reached to take its place. But the government’s legal advice says if this doesn’t happen, it would endure indefinitely.

The Irish backstop is an insurance policy as part of the withdrawal agreement to avoid a hard border between Northern Ireland and Ireland. If the withdrawal agreement is approved by parliament, and a deal with the EU isn’t negotiated before the end of the transition period in December 2020 (or later if it’s extended), we will go into the backstop. Under the backstop protocol, the whole UK enters a “single customs territory” with the EU, so there won’t be tariffs on trade in goods between the UK and EU.

Theresa May has said “there are [a] number of references throughout the withdrawal agreement that indicate that this is only temporary.” The EU says on the subject that the aim of the backstop “is not to create a permanent relationship between the EU and the UK”.

However, the government also released legal advice it had received, following parliament finding the government in contempt.

That advice, from Attorney General Geoffrey Cox, said “despite statements in the [backstop] protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative permanent arrangements, in international law the protocol would endure indefinitely until a superseding agreement took its place”. In other words, while not intended to be permanent, it will only be temporary if the UK and EU find a mutually acceptable alternative.

If the withdrawal agreement is eventually approved, with the backstop provisions in place, quitting the backstop without having reached a new arrangement with the EU would require the UK to tear up a legally binding treaty.

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