The Telegraph: The letters from Tusk and Juncker have done nothing to improve Mrs May’s deal

The Prime Minister’s hunt for “legal assurances” on the nature of key elements of her Brexit deal has now produced pages of new verbiage in the form of letters from EU Council President Donald Tusk and Commission President Jean-Claude Juncker.

At the heart of Mrs May’s problem is the question of what happens if there is deadlock in negotiations. The Attorney General’s advice to the Cabinet explained with great clarity why the UK could find itself locked in to the Northern Ireland “backstop” Protocol with no legal escape route, and that in such circumstances this situation would “endure indefinitely”.

Mrs May’s claim that this Protocol is just an “insurance policy” that will never come into effect is based on Article 184 of the Withdrawal Agreement. This says that both the EU and the UK should use their “best endeavours in good faith” to negotiate a future relationship based on the Political Declaration in time to prevent the backstop Protocol coming into effect.

The Political Declaration is only a vague outline of a future relationship which leaves many important points of principle, as well as all the detail, unresolved. The EU could not legally be adjudged as acting in “bad faith” if it chooses to interpret the Political Declaration in the way most favourable to its own interests. This is compounded by the fact that (in another disastrous own goal by UK negotiators) we have agreed to a form of future agreement between the EU and the UK which will need ratification by each Member State individually as well as by the EU itself.

The upshot is that EU leaders will be able to insist on all sorts of conditions in return for letting us out of the backstop. This much was clear when, on the day the Withdrawal Agreement was announced, President Macron said that France will be able to insist that EU fishing boats having continued access to UK waters. Spain will be in a similar position regarding its demands over Gibraltar. There will no doubt be further demands raised by member states and the EU itself.

The Attorney General’s advice points out that a good faith obligation does not require the parties to set aside their own fundamental interests, and poses the question: “But what happens if both parties, pursuing their best endeavours in good faith, are simply unable to agree a superseding agreement within a reasonable time, or indeed at all?”

His answer is as follows: “Despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein. Further, the Withdrawal Agreement cannot provide a legal means of compelling the EU to conclude such an agreement.”

So when we consider the last-minute letters sent by the EU to Mrs May, we need to question whether they have a legal effect which changes the conclusions in the Attorney General’s advice to Cabinet. They do not. They open by saying uncompromisingly “we are not in a position to agree to anything that changes or is inconsistent with the Withdrawal Agreement”.

Tusk then reiterates part of the conclusions of the December summit meeting. Unfortunately these summit conclusions were a disaster for Mrs May.

The pre-summit draft described the EU’s good faith obligation to use best endeavours to negotiate a long-term agreement. The EU leaders intentionally inserted wording saying that the EU “would expect the same of the United Kingdom”. This wording is repeated in the Tusk letter. It is a salutary reminder of the central problem of the “best endeavours” clause, that the EU can legally propose harsh or unacceptable terms, and then blame the UK for not accepting them.

A deadlock in negotiations can’t be assumed to be an indicator that the EU has breached the “best endeavours” clause in the Treaty. By itself, a break down in negotiations is no such thing. The obligation to use “best endeavours” to reach an agreement is imposed equally on both parties, not just on the EU. So if an agreement cannot be reached, in principle it is just as likely to be the result of the UK’s breach of its own obligation to use “best endeavours” as a breach by the EU of its obligation.

The Tusk letter says that the December summit conclusions “have a legal value to the Union.” Since those conclusions do not help solve the lock-in problem and actually reiterate the central difficulty, claiming that the council minutes have some kind of legal effect carries Mrs May no further forward.

Juncker’s letter claims that the backstop would be “suboptimal” for the EU, so the EU would want to replace it. But, again, no such statements or assurances solve the basic problem. The UK is locked into the Protocol unless and until the EU agrees to release us, and nothing compels the EU to release us short of our succumbing to whatever terms (however harsh) they choose to impose.

The way in which the EU are going to use the negotiating leverage of the backstop against us was made clear in November in a leaked note from Sabine Weyand (Michel Barnier’s deputy) to the EU27 member states.

“We should be in the best negotiation position for the future relationship. This requires the customs union as the basis of the future relationship,” Ms Weyand said. “They must align their rules but the EU will retain all the controls.”

The Attorney General’s advice to Cabinet concluded that “the current drafting of the Protocol, including Article 19, does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK-wide customs union without a subsequent agreement. This remains the case even if the parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.”

Nothing in these letters can affect that advice. Regrettably, our Prime Minister is not engaged in a process of negotiating changes to her deal in the UK’s interest. She is only seeking to change the perception of it without changing the substance.

Click here to read the piece in full.

sign up to our Newsletter