The UK government has not been able to get the UK EU Withdrawal Agreement approved primarily because of objections to the Northern Ireland Backstop (officially called the Protocol on Northern Ireland). The objectors fear that the UK could be permanently locked into the Backstop. To end the Backstop representatives of both the EU and the UK have to agree under Article 20 of the Protocol that the Backstop is no longer needed, so in principle the U.K. could get locked in by intransigence on the part of the EU. Many opponents of the Backstop as it stands are confident that solutions will be found too make it no longer necessary, but they fear that the EU would still force the UK to stay in the Backstop. Ian Roxan (LSE) argues that an Arbitration Agreement can solve the backstop blockage.
The simplest solution to the Backstop problem would be to use the arbitration procedure in articles 170 to 181 of the main Withdrawal Agreement. If the EU and the UK could not agree on ending the Backstop, the UK would be able to request an arbitration. The parties would each appoint one or two independent arbitrators who would in turn appoint a neutral chair. This panel would give a binding ruling on whether the conditions for ending the Backstop were met.
One advantage of this idea is that it does not require reopening the Withdrawal Agreement or even the Northern Ireland Protocol. The Protocol does not explicitly say that the Article 170 arbitration procedure applies to the decision to end the Backstop, but it does refer to either using or excluding the arbitration procedure, notably in Annexes 2 and 4 to the Protocol. For greater certainty, the UK and the EU 27 could sign a side agreement confirming their understanding that the arbitration procedure is available.
To make this work, the criteria that the arbitration panel would use to decide whether the Backstop was still needed would have to be clear. This could easily be done in a side agreement that would recognise the desire for ‘alternative arrangements’ that has been expressed in the amended resolution of the House of Commons on 29 January (the so-called Brady amendment). The side agreement would set out a series of criteria that would have to be met to end the Backstop, such as what alternative arrangements would have to be capable of achieving in terms of the openness of the border on the island of Ireland. Ideally, these criteria would be sufficiently specific that they would provide real guidance to the arbitrators, while being sufficiently open ended so that all parties would feel that their interests were recognised. For example, they should allow for the possibility that new technological solutions could be developed, but they could also mention a range of other possible solutions, even something as unlikely as the possibility that a reconstituted Northern Ireland Executive might in future favour a relationship with the Republic of Ireland more closely tied to the Single Market. Allowing for such a wide range of possible solutions could entail including criteria such as objective (external expert) evaluation of the effectiveness of proposed solutions and indications of their acceptability to the relevant populations.
Drafting such criteria sounds challenging, but need not be. The key is to present wording that everyone can read as offering a favourable result, while still providing sound reassurance that there are no unavoidable traps. Further assurance could be given to the Democratic Unionist Party (DUP) by providing for a five-person arbitration panel with one member chosen by the Northern Ireland Executive and one chosen by the government of the Republic. Allowing these appointments to default to the UK and the EU respectively if not exercised would cover the risk of there being no Northern Ireland Executive in place in time.
It is understandable that staunch Brexit supporters have little faith in reassurances from the EU 27 that the Backstop is not intended to be permanent or even lengthy. The best way to give them the reassurance they need without hollowing out the insurance that the Backstop gives of no hard border on the island of Ireland is to make it clear that there is an arbitration procedure in place that will recognise the concerns of all sides and that can adapt to future developments, both the developments that each side hopes for, as well as unexpected future developments that may offer as yet unimagined solutions. The great advantage of the arbitration approach is that it would change the ‘deal’ without reopening the text of the Withdrawal Agreement: an easy win for both sides with hopefully a real chance of getting approval in the House of Commons and from the EU.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Dr Ian Roxan is an Associate Professor in the LSE Department of Law. Originally from Canada, he has been with LSE since 1995, having previously worked with law firms in Toronto and Brussels, and with the Canadian Department of Finance. His research at LSE focuses on UK, European Union and international taxation, including tax arbitration.