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Right - so I have now read last night's documentation: an 'instrument' relating to the WA; a 'joint statement' supplementing the PD; and a unilateral declaration by the UK Govt on the NI Protocol. They are all here:… 1/
There will be much debate about both the legal status of the documentation (given that there are no changes to the wording of the WA and PD), and about the intended meaning and effect of the words used. 2/
Disproportionate weight will be given to the opinions of 'legal experts'; in particular to the views of Geoffrey Cox and the ERG's 'Star Chamber'. It will soon become clear that there is no legal consensus. 3/
The Joint Statement on the Political Declaration, is, like the PD itself, remarkably flimsy. Para 5 on social and employment standards (in which the Union notes the UK's intention to ensure that its standards do not regress) is a notable case in point. 4/
But, most of the attention will be on the Irish backstop, and in particular on the temporary nature of the backstop, and the UK's fears that it will become a trap from which it is unable to escape. 5/
On that, today's reality is, imv, no different from that expressed in November. Both sides say that they aspire to a future relationship which is 'as close and strong as possible'. Both sides agree that the backstop is intended to be a temporary (and sub-optimal) arrangement. 6/
The backstop can only be replaced by 'a subsequent agreement that would ensure, on a permanent footing, the absence of a hard border on the island of Ireland'. 7/
Can this be done? Yes it can. And very straightforwardly: via an agreement that the UK remains part of the customs union and single market. 8/
It can also be done via an agreement which maintained NI alignment with single market rules; but in that case, if GB wanted to diverge, there would have to be a border between NI and GB. 9/
These routes are rejected by most Brexiters. But, it can also, perhaps, be done, via 'alternative arrangements', once it is shown that these exist, and work properly. 10/
None of this is new. The only things which are new (in the Instrument) are a strengthening of the commitment to negotiate hard, to schedule 'high-level conferences', and to work 'speedily'. 11/
In the unilateral declaration, there is also a para in which the UK says that it considers that it is allowed to 'instigate measures that could ultimately lead to disapplication of obligations under the Protocol', if the EU has acted in bad faith (in breach of A5 of the WA). 12/
In the para, reference is made to A20 of the Protocol, which affords decision-making power to the joint committee. So, as I read it, the UK can seek to invoke the review mechanism in the event of bad faith on the EU side. 13/
Will all this be enough to allow TM to convert a 230-vote defeat into a victory? Everything will depend on how this is received by the DUP and the ERG, and their respective legal teams. 14/
They may well decide that, in the end, they are prepared to back the deal, on the grounds that it is the best Brexit deal they are going to get. 15/
But they should not do so on the basis that there has been a material change to what was agreed in November. Ends. 16/16
And, now, from Geoffrey Cox himself, this:… 1/
The docs, per Cox, *reduce the risk* that the UK could be 'detained' within the Protocol, 'at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU' (17). 2/
However, the legal risk remains unchanged that if simply because of intractable differences a new agreement is not reached, the UK would have 'no internationally lawful means of exiting the Protocol's arrangements, save by agreement' (19). 3/3
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