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Monday 3 December 2018

The minister being wheeled out to do the media rounds this morning is Sajid Javid. The home secretary was supposed to be armed with a promising migration white paper to paint a picture of a sovereign United Kingdom selecting the labour it needs to fuel her economy. The document has been delayed however, leaving Javid and the Number 10 PR machine to resort to a few quotes:

“EU free movement rules means the politicians [we] elect have no control over who comes here from Europe, and how many… Leaving the EU gives us the opportunity to change this.

“My message to [MPs] is this: Let’s take this chance to deliver an immigration system truly underpinned by public support.”

According to the Sun, the delays are down to Javid who wants restrictions on low-skilled migration to taper off after 2020. Theresa May wants them imposed much earlier. Or is that we’re supposed to think?

Migration – the designated topic of the day to drive May’s deal – is a mere sideshow to the legal note leaked overnight. Suspecting that even a neutral, technocratic appraisal of the withdrawal agreement would be critical, Brexiteers in Westminster have been pushing the government hard to publish its legal advice. It turns out they weren’t wrong.

Two weeks ago, when the final political declaration was released, the government attempted to calm fears of eternal membership of the Customs Union by replacing the infamous 20XX cut off date of the extended implementation period with 2022. The legal note makes it clear there is no reason to believe the transition period will end any time soon.

This issue, along with many others, swirls around the joint committee, which will have a decisive role in terminating the Irish backstop, the unfortunate means by which the transition period will be prolonged until a solution to the Northern Irish border is uncovered.

The document notes that a large number of issues have not been pinned down by the agreement. Leaving them for the joint committee to resolve on a running basis is concerning, particularly given that the withdrawal agreement is pre-programmed towards inertia if neither party agrees:

No decision may be made without the UK’s agreement. This may not be the same thing as the two parties having equal power, as the aims of the parties will matter. If the Joint Committee is unable to reach a decision, in some circumstances, that will block next steps. The party that wants those next steps to occur, will then be at a practical disadvantage.

The text goes on to use the example of state aid and agriculture. Under the transition period, as a non-EU member, the UK could find itself asking Brussels to subsidise agriculture to meet increased farming payments in the bloc. If the EU denies the request through the joint committee, the British government would be powerless to help farmers to compete with cheap EU imports.

This may sound like a random imagined scenario, but we have two (most likely many more) years of fraught negotiations ahead of us. Don’t bet against the EU making a few stabs and twisting the blade.

At its disposal for anarchy, Brussels will also have the dispute resolution mechanism, which “can decide by majority” rather than consensus. The EU and the UK will have an equal number of adjudicators – ten each – accompanied by five from third countries. With an inbuilt minority vote, Britain would be in an even worse situation. The legal advice thinks so too:

This raises the prospect of a decision adverse to the UK on the view of the EU appointed panel members and the jointly appointed chairperson outvoting the view of the UK appointed panel members.

Worries over arbitration extend to the European Court of Justice’s role in presiding over EU laws both during and after the transition period. The rights of EU citizens will continue to be observed and ruled upon after 20XX (sorry, 2022), as will aspects of the financial settlement.

“It is unusual to give the courts of one party jurisdiction to resolve disputes concerning an international agreement,” adds the note.

The admission in the opening few pages that, “this customs union would be a practical barrier to the UK entering separate trade agreements on goods with third countries,” has grabbed the headlines. This is nothing new whatsoever of course, although that doesn’t make it any redeemable. It’s the detail that’s cause for concern and smacks of a deal that May was determined to make no matter what.

Don’t believe us? Ask Borissee Tweet of the Day below.