Important shift in tone, but Q is whether this is structural or tactical

(More likely the latter)

1/
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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More from @Usherwood

10 Nov
Let's kick the tyres on what the UK might do next week on this

tl;dr UK has left itself minimal space to avoid blame, whatever happens
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/
Read 14 tweets
8 Nov
Since we're all going to need it, some detail on suspending/terminating the TCA

PDF: bit.ly/UshGraphic95

A few thoughts too

1/
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/
Read 6 tweets
1 Nov
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

PDF: bit.ly/UshGraphic94

Some thoughts too

1/
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/
Read 7 tweets
18 Oct
Some thoughts on the UK's approach to the NI Protocol and what that might mean

Short version: UK wants to hold it in unstable situation, to avoid wearing costs of Brexit domestically, but this isn't a long-term strategy

1/
Let's start with how to understand UK HMG's approach to things right now

It seems like there are 3 main ways of looking at it

2/
First is the 'ugh' model: HMG doesn't like the Protocol and just wants it changed to something (maybe even anything) different

3/
Read 28 tweets
13 Oct
A guide to the main areas in which the CJEU has a role in the Withdrawal Agreement/Protocol

PDF: bit.ly/UshGraphic93

1/
In essence, Court's role is to provide definitive rulings on EU law, as it continues to be needed within UK, under terms of rest of treaty

2/
Much of that is transitional, either by nature (e.g. wrapping up existing cases) or design (e.g. time limits on cases on Citizens' Rights)

3/
Read 6 tweets
10 Oct
HMG thinks its aggressive strategy on Protocol is working in getting EU to move, so it's going to continue to push that

Let's think about why this is not the case

1/
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/
Read 12 tweets

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