On Monday morning Martin Selmayr, the secretary general of the European Commission, was in mid-flow briefing EU ambassadors on how efforts over the weekend to get legally binding assurances on the Irish backstop had ground to a halt.
By 8pm that evening Theresa May was on an RAF BAe 146 jet bound for Strasbourg to meet Jean-Claude Juncker.
"The legal risk remains unchanged," he told an audibly deflating House of Commons the following morning. "There is no ultimate unilateral right out of this [backstop] arrangement."What on earth went wrong?It was there, during the EU-Arab summit on 24-25 Februrary, that May sensed a deal on legally binding assurances on the backstop was possible.
Things looked promising. Juncker was clear he could encourage the EU to accept legally binding additions to accommodate the "capriciousness" concept. It was not until the evening of Tuesday 5 March that Cox finally tabled formal proposals during a three-hour meeting in Brussels.Cox infuriated Barnier’s deputy Sabine Weyand by calling her "my dear" during what were described as "robust" exchanges.
To bolster the good faith argument, Cox added another new word into the lexicon: reasonableness, a Victorian legal concept that, he hoped, would allow an arbitration panel to rule in the UK’s favour in a way that could sidestep’s the involvement of the European Court of Justice . Combine those arguments and the UK should be entitled to walk away from the backstop. EU officials were in disbelief.
"The problem is," he told MPs, "that even though the arbitration system applies to the [Irish] Protocol, the question that one asks the arbitrator is at the heart of the effectiveness of any arbitration". On Friday morning the EU believed the UK was already blaming Brussels for the breakdown. Theresa May gave a speech in Grimsby effectively saying it was up to the EU to move. Brussels also wanted to dampen speculation about what they were willing to offer.
There was a second gambit. Mr Barnier also tweeted: "[The] EU commits to give UK the option to exit the Single Customs Territory unilaterally, while the other elements of the backstop must be maintained to avoid a hard border. UK will not be forced into customs union against its will." Although the Withdrawal Agreement still contains that option, it was dropped as part of the re-packaging that was now on offer.
Downing Street began briefing lobby correspondents that May’s jet was on standby at RAF Northolt to whisk the prime minister to Brussels at a moment’s notice. But the plan had to be run through the UK Cabinet. On Sunday morning Olly Robbins was back in London briefing ministers. By noon things were looking promising. A May-Juncker meeting looked like it could go ahead on Sunday night to seal the deal.Another official described a period of tense waiting: "There was a sense that the deal was done, the PM is on board, she’s coming with secretary of state and the attorney general. Then, it changed. She might be coming alone.
Having spent the best part of two weeks trumpeting the EU’s capacity for "bad faith", Cox’s comments appeared to Barnier to be the very thing he was accusing Brussels of. Unilateral Declarations are often added to treaties to clarify their meaning. In 2009, indeed, Ireland attached a Unilateral Declaration to the Lisbon Treaty, clarifying that nothing in the treaty impinged on Ireland’s neutrality.
In other words, by tacitly acquiescing to the declaration, the EU was allowing it to have legal status, and the UK could then use that in a future arbitration case. By mid morning Downing Street was briefing lobby correspondents that Strasbourg was on the cards. In Dublin there was a brief mention of Strasbourg, in Cabinet, getting under way a day early because of St Patrick’s Day departures.
Contacts went back and forth to Brussels. John Callinan, the Government’s senior Brexit negotiator, spoke by phone several times to his opposite number Olly Robbins. "Normally with these things you’ve done all the homework, and it’s just about dotting the ‘i’s and crossing the ‘t’s," says one official.
It also stated that the UK wished to "record its understanding" that if it was not possible for both sides to conclude a trade agreement to supersede the backstop, then this was a "breach" of the Withdrawal Agreement’s "good faith" obligations. First, the measures the UK would be able to "instigate" to exit the backstop could only be facilitated by the dispute resolution part of the Withdrawal Agreement.
In other words, even if things got to that point, the UK would have to abide by the overall objective of no hard border, and its obligations under the peace process. These, of course, are the very essence of the backstop. Back then Macron had threatened that if the UK was not flexible during the trade negotiations on access to UK waters for European fishing fleets, then that would hold up those negotiations and - as a consequence - keep the UK in the backstop.
What would Geoffrey Cox say? Would this be enough for him to reverse his legal advice that the backstop could be indefinite? The EU would simply have to show "a pattern of unjustified delay," for the UK to claim at arbitration that the EU had breached the good faith obligations.
Ireland Latest News, Ireland Headlines
Similar News:You can also read news stories similar to this one that we have collected from other news sources.
Brexit: Cox, Barnier and the blame game beginsAs the high-stakes Brexit negotiations reach a crucial phase, the blame game is also well under way writes tconnellyRTE
Read more »
Brexit: Blow to Theresa May’s deal as British AG Cox says legal risk remainsDowning St claimed it had won legally binding changes to backstop
Read more »
DUP to vote against Theresa May’s Brexit dealTory hardliners set to reject agreement after Cox downplays changes agreed in Strasbourg
Read more »
MPs have voted overwhelmingly to reject Theresa May’s Brexit dealMove followed advice from Geoffrey Cox that changes did not remove risk of UK being trapped indefinitely in backstop
Read more »
The feeling in the North is one of pessimism and a growing business anxietyPerhaps Cox could have merged the legal and the political, and got a lot of people off the hook, including the DUP
Read more »