Thread by @GeorgePeretzQC

There is an argument that Part 5 of the IM Bill (the bit that permits breaches of the Withdrawal Agreement) doesn’t undermine the Good Friday Agreement - but not for the reason claimed by Eustice.

https://twitter.com/skynews/status/1325709509722075141

There are 2 elements to Part 5. The first (clause 44) permits breaches of rules about exit procedures from NI to GB. (Essentially some form filling.)

Far more important is clause 45 on State aid. The issue here is “reach back”: the effect that Article 10 has in Great Britain. See

https://twitter.com/GeorgePeretzQC/status/1325490554369675270

You could therefore say that if Article 10 is used just to prevent “reach back” to GB, what you are really doing is correcting a mistake that the current government made when it signed a provision that clearly entailed reach back, and not affecting NI (or the GFA) at all.

The current government won’t use that argument because (a) it concedes its own carelessness in signing Art.10 - and abandons its pretence that there’s EU “bad faith” here - and (b) it’s inconsistent with its “protect NI’s place in the U.K.” justification.

But it would be vaguely plausible if run.

That said, I think “vaguely plausible” doesn’t mean “right”. There’s a reason A10 applies to UK or GB measures that extend to or have knock-on effects on NI trade.

It protects the EU against the possibility that businesses in NI benefit from UK measures in ways that give them an unfair leg up when they export to the EU across the open NI/EU border - the Irish border.

If the U.K. can rewrite what A10 means at will, then that protection goes. That puts pressure on the open border and hence the GFA.

Finally, Eustice’s argument about legal clarity and certainty doesn’t hold a drop of water. A10 is as clear as anti-subsidy provisions ever are. And A12 sets out in plain text how issues as to its application are resolved: by the Commission, the UK courts and ultimately the ECJ.

That said, there is a strong case that A10 is not a sustainable arrangement: a case I have sympathy for (though the govt should have thought about that before signing it).

But the answer isn’t a hare-brained and unconscionable plan to breach international law: it’s to set up and commit to a robust subsidy regime of our own, and then persuade the EU do drop A10 on that basis as part of an agreed FTA.