The devil is in the detail. But ultimately the UK choice is whether (a) to accept a deal the benefits of which cld be withdrawn if the EU (after arbitration) later decides that divergence has in fact become too great for those benefits to be in its interests any more; or
(b) to refuse a deal, and those benefits, now (and before we have decided what if any divergence we actually want.
It’s a bit like someone who balks at renting a nice house they rather like because there’s a term in the lease that gives the landlord a right reasonably to refuse them having pets, even if they have no pets and aren’t sure whether they ever will.
In each case, the rational option would appear to be to take the benefits now: and if it later turns out that diverging/buying a pet is worth losing tariff-free access/your nice house at a later stage, at least you’ve enjoyed the benefits in the meantime.
PS in neither case is “sovereignty” plausibly at issue. The landlord is not stopping you deciding not to have a pet: she’s just saying that if you buy eg a huge barking dog that annoys the neighbours you will have to move out.
Similarly EU is not stopping UK divergence: it’s just saying that at some point divergence would mean that UK tariff-free access to its market isn’t in its interests any more.
Similarly, the protest “but this is tougher than EU/Canada” misfires. The landlord may not have imposed a similar pets clause on a tenant renting her country cottage: but if you are renting her basement flat, her interests in no barking dogs are a bit different.
Very large numbers of international treaties require the UK to make, or not make, law. The UN Treaty requires us to impose sanctions. The Antarctic Treaty requires us to prohibit unlicensed operators organising tours to Antarctica. GATT restricts our ability to set tariffs.
@SBarrettBar appears to think that such provisions do not infringe his definition of “sovereignty”, but he fails to explain why not.
The first concealed rational answer is that, in a negotiation, you may want to try to force your counterparty to offer better terms by saying that you will walk if you don’t get them.
And you may say that even if, faced with the choice between currently offered terms and walking away, you’d be mad to walk away.
It doesn’t use the useless word “abusive”. But my point that “the EU in the Joint Committee” doesn’t decide what Article 10 means stands: that is for the Court of Justice, as provided for by Article 12.
As to reference to “hypothetical, presumed, or without a genuine and direct link”: it adds nothing. (Would any court ever hold that a hypothetical, presumed, or non-genuine effect was enough?).
On subsidy control, it’s critical to remember that the EU has accepted that the UK can apply its own subsidy regime not “EU State aid rules”. Since the Tories promised such a regime during the GE, that should be acceptable.
This is a soluble problem. A clause or side letter could record that the EU has no objection to the UK granting aid to compensate businesses for Covid losses or to restart the economy.
Note, however, that as explained here, politico.eu/article/uk-scr…, it was not at all clear in WTO law that the UK could take advantage of the WTO ruling authorising the EU to impose those tariffs.
Nor is it clear that there is domestic law power to impose such tariffs: legislation would have been got through by the end of the year.
That is because Article 12 of the Protocol says this.
The 1st sentence of para 4 tells you, for present purposes, that the Commission has all the powers over the UK in relation to Article 10 as it has over Member States under Articles 107-108 TFEU. Powers to find that aid has been granted under Article 10 and to order repayment.