BBC 6 o'clock news reported May has gone to Strasbourg and they expect an update on what's happened in 'around 3 hours'. So about 9pm.
Henry Newman @ henrynewman
Attention now swirling on language from January's Tusk/Juncker letter
This was dismissed by critics at time as not worth paper it was written on
That was wrong
But it’s worth looking more closely at it as EU seems to be about to make its commitments more binding
Thread👇
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An exchange of letters can have treaty status in international law. Examples include the 1940 & 1941 Land-Lease Agreements between the UK and US.
Even if the exchange of letters had a boosted legal status, but fell short of a full treaty, it would not be legally meaningless
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The exchange of letters already included several important commitments
First - and perhaps most importantly that the backstop (protocol) doesn't contradict the Good Friday Agreement
This follows concerns from DUP & others that the backstop itself cut against the GFA
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Second letter is clear that - even in backstop "any new act that the EU proposes should be added to the Protocol will require the agreement of the UK in the Joint Committee" - ie UK gets a veto over new directives, laws & regulations
[this is not well understood!]
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Third, letter makes clear that requirement for regulatory alignment in backstop is limited to that which is "strictly necessary" for upholding the Belfast / Good Friday Agreement and avoiding a hard border
- that is quite high test. Note not necessary but strictly necessary
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Fourth letter makes clear the UK can give NI institutions representation on its side of joint committee
This points back to commitment in December 2017 to give Stormont a veto over new regulatory divergence
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Fifth the letter stresses the joint UK-EU commitment to use "best endeavours" to conclude a agreement to replace backstop before end of 2020. And promises specifically that facilitation and technology (read - Max Fac) will be considered
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Sixth, there is a commitment that "Any arrangements which supersede the Protocol are not required to replicate its provisions in any respect, provided that the underlying objectives continue to be met".
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....This important commitment is a riposte to an often repeated but misunderstood sentence in the political declaration that the future arrangements would "build and improve on the Single Customs Territory"
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That was interpreted widely to mean that the only way to replace backstop would be with version of Single Customs Territory - a customs union.
The EU has explicitly said that is not the case
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Seventh, the EU commited to using full political impetus to making progress on the negotiations and to at least six monthly meetings
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The letter did note that EU wouldn't agree anything "inconsistent with the Withdrawal Agreement"
But remember that's not actually what is needed. It's already clear that the backstop isn't permanent (it's just that it applies unless and until) alternative comes into place
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What is needed is that commitments such as those already outlined in this letter be given legally-binding status 👇
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Response from Juncker to May
On Friday @MichelBarnier committed that the letter be given that legally enhanced status
This was not easily won as key member states felt the letter went too far and making it binding could strengthen the UK position too much
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Michel Barnier @ michelbarnier
3/5 EU ready to give legal force to all commitments from January letter of @eucopresident and @JunckerEU through joint interpretative statement.
t.co/kCUbTk4nYA This will render best endeavour/good faith obligations even more actionable by an arbitration panel.
Henry Newman @ henrynewman
Barnier also noted that the existing arbitration panel could allow the backstop to be suspended in whole or part if the EU failed to meet its commitments
The commitments in the letter (especially if made more binding) will strengthen UK position
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Michel Barnier @ michelbarnier
2/5 The arbitration panel can already, under Article 178 WA, give UK the right to a proportionate suspension of its obligations under the backstop, as a last resort, if EU breaches its best endeavours/good faith obligations to negotiate alternative solutions.
Henry Newman @ henrynewman
As @JGForsyth suggests some believe if UK secured clear enough commitment that backstop did not cut across Good Friday Agreement, it would allow UK to argue that backstop couldn't not therefore apply permanently as a matter of international law
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Spectator Article
These sort of legal changes won't meet the demands of every critic. But the key test should be - does the legal position change when @Geoffrey_Cox updates the House
All 👀 on that
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