So the row back from Brandon Lewis's concession that IL will be breached has begun: see Lord Keen at 10.02 am parliamentlive.tv/Event/Index/e2… This new, more sophisticated legal case, rather than the PM's gibbering last night, is what needs to be addressed.
The nub of the argument appears to be that it is a form of potential retaliatory self-help should the EU breach the WA at 11th hour by barring food movements from GB to NI, a giving of teeth to Article 16 NIP
.
But this argument does not wash not least since cl42 and 43 are not drafted in that way. And any such self-help power should be surely drafted so as to be contingent upon the happening of an Art 16 event, i.e. "If the Minister reasonably considers Art 16 situation arises, then.."
Lord Keen concedes towards the end that the Bill may be "too widely drawn". So my guess is that what will happen is that cl42 and cl.43 will be redrafted quite fundamentally to introduce such express contingency into their operation, so that they can only be triggered to meet ...
...what the Minister considers to be an Article 16 situation. And that can be presented as a true kompetenz kompetenz situation as matter of the NIP. This will be the new position to which HMG will retreat to head off mounting criticism, rebellion etc. ....
... And they will pretend that it is what was intended all along, which makes no sense at all given the scope of cl42 and cl43, i.e. exit procedures and state aid. The true position is surely that the EU was pushing its existing entitlements *on those subjects* in the negotation.
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