A couple of weeks ago, Art.16 use was being talked up a lot, as well as role of CJEU. And yes, I thought it would happen too
So what's changed?
2/
Fundamentally, nothing
Frost's critique hasn't moved (as seen in his less emollient interventions) and no sign that negotiations have changed any basic elements of NIP
3/
What had changed is context
Sleaze and trains have proven unexpectedly (for him at least) problematic for Johnson, so one argument is that he has enough not to add to the pile by kicking off a major dispute w EU (esp. one he's unlikely to win)
4/
That's nicely rational, but lived experience of this govt is that such models have ltd traction.
No good reason to think such a hard-headed re-evaluation has occurred, esp in a hard version that takes Art.16 off table for good
5/
At most, Johnson might have told Frost to back off for a while, and got Gove to make nice sounds, but absent associated substantive action in negotiations/implementation, probably safest to assume this is ephemeral
6/
Talk of a new model of permanent negotiation, to keep things up in the air, would make sense as a less unstable approach than the guns-blazing way of the sumer, but too early to know if this is the case
I'd also have doubts Johnson could balance on that line, long-term
7/
So, probably fairer to assume is that this is a bit of UK regrouping ahead of some new gambit, rather than a major sea-change
/end
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If we follow line that UK wants COP26 out of the way, then next week it likely moment of decision
Negotiations aren't moving, so it's time to sh*t or get off the pot with this
2/
UK knows it can't leave Art.16 out there much longer, both because it's talked up availability/necessity of its use and because there's already been much delay
Absent any big EU move on NIP (on top of what they already did), UK has to show this isn't stuck in the snow
3/
The suspension provisions under Art.772 aren't simple or a free-for-all, as you have to make a strong case for their use and you're bound to be proportionate
2/
By contrast, the general (Art.779) and Part (Art.591/692) provisions on termination don't need any justifications or thresholds, or even to talk about it, so they're much less liable to challenge
3/
Given that my plan to be on leave while the whole Jersey fishing thing blew over has come to nothing, here's a guide to what the TCA actually says both on access and on disputes
Like much of the rest of the TCA, there's a lot that isn't well-specified. Vessels should 'demonstrate' historic access, but how that works practically isn't clear: what's the benchmark and relevant case-law to draw on? (@chris_huggins any equivalent cases?)
2/
Also note provisions at end of Art.502, which suggest this was something the drafters thought might well be reworked, so sense of a bodge is evident
3/
This belief has roots in mythology of WA/TCA negotiations, where Johnson Ian view that his erratic behaviour got former through hostile Parliament with some big wins on Protocol
2/
A cursory look at the various versions of that Protocol will show this wasn't actually the case, but the mythology has stuck
3/