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Tuesday 12 March 2019

Late last night in Strasbourg, Theresa May and Jean-Claude Juncker presented two new documents, “complementing” the existing Withdrawal Agreement, which remains unchanged. The British government has added a unilateral declaration to the file, with the apparent approval of Brussels.

“This deal. This instrument. This arrangement. This treaty — is complementing the Withdrawal Agreement without reopening it,” said Juncker.

“In politics, sometimes you get a second chance, this is what we do with this second chance that comes because there will be no further chance, there will be no further interpretations of the interpretations, no further assurances on the reassurances if the meaningful vote fails [Tuesday],” added the Commission president in a warning to the House of Commons, this is the best deal they’re going to get.

“There will be no new negotiations. It is this.”

Mrs May will hope it’s enough to get her over the line at tonight’s meaningful vote. It would be an incredible turn of events for her transform her three-digit defeat from January. But the establishment is on her side and Leavers in Westminster are panicking. This last minute development is more than most expected, but it still amounts to nothing, and lest we forget, we’re still set to pay £39bn and remain in the Customs Union, for that remains the government’s long-term objective.

We’ll kick off with the unilateral declaration by Her Majesty’s Government.

Attention last night was fixed on Dublin. Because the Irish backstop is supposed to act as a permanent safeguard, a concession to the UK would be interpreted as betrayal for the Irish. Given that the material issued out of Strasbourg offers a glimmer of a possibility that Britain could one day extricate itself from the backstop, technically, the Irish had been shafted. But of course, they haven’t, it’s politically impossible for Britain to navigate its way towards a unilateral exit.

One essentially cancels out the other, leaving the Irish Taoiseach with nothing to say. At a pre-scheduled statement this morning, Leo Varadkar’s words could not have been more meaningless – he then took to Twitter to again say nothing.

Varadkar’s role in all this offers an insight into why Britain’s political declaration means more than it first appears to. Ranked against the legally binding withdrawal agreement and the political declaration, it’s right at the bottom. No legal status and no formal approval from the EU.

However, we’re told the unilateral document was released late due stalling from Varadkar busy trying to prepare his statement. It aims to clarify the Northern Irish protocol – i.e. the backstop – so he was consulted. You can see why May was eager to get it out there, in spite of its apparent meaninglessness.

The final paragraph asserts Britain’s powers to withdraw via independent arbitration. The text has been worded by a hustler. True, Britain can approach the arbitration panel to its heart’s delight so while it’s true that nothing “would prevent it from instigating measures”, that’s irrelevant. What’s important is the likelihood of those measures succeeding. Even if they do, while arbitration “could ultimately lead to disapplication of obligations”, Britain would only do so under the “proviso that the UK will uphold its obligations under the 1998 Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island of Ireland.”

Given that our own government has been complicit in tying a noose around the country’s neck using the Irish border and the Good Friday Agreement’s intolerance for border infrastructure, there is no possibility of unilateral withdrawal.

The declaration, therefore, serves to assuage Irish concerns, but at the same time aims to highlight the (very minor) legal concessions extracted from the EU and laid down in the “instrument” document, by far the most important of the three.

Again, it’s counterintuitive, essentially rehashing the terms for arbitration in the Withdrawal Agreement. Those terms have hardly been loosened, matters referring to EU law will still pass on to the European Court of Justice. However, paragraph 14 provides scope for Britain’s withdrawal from the backstop without the EU’s consent, which the unilateral declaration has been used to amplify. The prospects of the Withdrawal Agreement passing tonight rest on this “clarification” mutually agreed between London and Brussels.

Under the dispute settlement mechanism, a ruling by the arbitration panel that a party acts with the objective of applying the Protocol indefinitely would be binding on the Union and the United Kingdom. Persistent failure by a party to comply with a ruling, and thus persistent failure by that party to return to compliance with its obligations under the Withdrawal Agreement, may result in temporary remedies. Ultimately, the aggrieved party would have the right to enact a unilateral, proportionate suspension of its obligations under the Withdrawal Agreement (other than Part Two), including the Protocol. Such a suspension may remain in place unless and until the offending party has taken the necessary measures to comply with the ruling of the arbitration panel.

For a legal document, it’s extremely vague. No surprise then that, Michael Gove, who was doing the media rounds for the government this morning didn’t venture to explain why he was so optimistic for tonight’s vote. That burden fell to the attorney general, mandated to consult the “best legal minds” before giving his verdict as to whether Britain can leave the backstop unilaterallym, could we end up imprisoned indefinitely? At the last vote on May’s deal, Geoffrey Cox concluded it legally possible, but politically unfeasible. The EU would have to let Britain go at some stage.

Cox’s position is unaltered. There would be “no internationally lawful means of exiting the Protocol’s arrangements, save by agreement,” he said later this morning.

It was feared a decision by Cox in favour of his boss’s abysmal agreement would provide rallying power for the European Research Group and the DUP. We now await the interpretation of their shared panel of legal experts, scheduled for later today.

Theresa May’s salvage operation, delayed to the very last minute to quell the Brexiteer fightback, is not worth the bytes it’s stored on. What is important is whether soft Remainers and Leavers – note Eurofanatics like Dominic Grieve are coming straight of the blocks his morning against the renewed deal, unlike their supposedly patriotic counterparts in the Commons – can make a convincing enough case to justify their change of mind. Cox’s has made that much harder.

But the day has only just begun.