The European Commission and the United Kingdom have agreed a package of measures on the Irish backstop, following 11th hour talks between Prime Minister Theresa May and Commission President Jean-Claude Juncker in Strasbourg.
It is understood the Irish Government is "content" with the assurances, which will take the form of a legally binding joint statement on the application of the backstop, changes to the non-binding political declaration, and a unilateral declaration by the UK on the backstop.
However, all sides will be looking carefully at the full implications of the various texts in the coming hours, and the idea of a Unilateral Declaration may prove controversial.
MPs at Westminster, who overwhelmingly rejected the Brexit Withdrawal Agreement earlier this year, are due to vote on the revised proposals this evening.
Brexiteers in Mrs May's Conservative party and the DUP, which supports her minority government, are studying what has been agreed.
UK Attorney General Geoffrey Cox has said that while the agreements "reduce the risk" that the UK could be trapped indefinitely in the backstop, they do not remove it altogether.
Most contentious aspect of the package will most likely be the Unilateral Declaration by the UK on the backstop.
The breakthrough came following technical discussions between EU and UK officials over the weekend.
The key elements are as follows:
- A legal instrument interpreting the Irish protocol, which has "legal force and a binding character"
- A joint statement supplementing the Political Declaration on the future EU-UK relationship which emphasises both sides best endeavours to negotiate a free trade agreement quickly, and to work towards alternative arrangements, such as technology, to replace the backstop
- A Unilateral Declaration by the UK that if the backstop comes into effect, talks break down and there is no prospect of subsequent agreement, the the UK can "instigate measures" that could ultimately "disapply" the backstop
The most contentious aspect of the package will most likely be the Unilateral Declaration by the UK on the backstop.
The declaration sets out the circumstances in which the UK could challenge the EU that it is in breach of its good faith provisions on replacing the backstop with a free trade agreement as soon as possible.
The declaration states that it is the UK’s understanding that if it is not possible for both sides to conclude an agreement that supersedes the backstop, then "nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the protocol".
The effect of the Unilateral Declaration is that the European Commission has essentially tacitly acquiesced in its publication by the UK.
In other words, if the EU had objected to such a declaration, it would have been legally dead.
UK sources suggested there was significant "push back" from Dublin when the idea of a Unilateral Declaration emerged
By acquiescing in its publication, as part of last night’s bundle of documents, the EU has permitted the UK to carry forward a stronger legal argument if it wanted to take a case to arbitration that the EU was not acting in good faith over the backstop.
In a statement following the meeting in Strasbourg, Mrs May said the Unilateral Declaration would state "that if the backstop comes into use and discussions on our future relationship break down so that there is no prospect of subsequent agreement, it is the position of the United Kingdom that there would be nothing to prevent the UK instigating measures that would ultimately disapply the backstop".
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However, the measures referred to are provided for in the Withdrawal Agreement.
This means that, even though the Unilateral Declaration gives the UK a stronger legal remedy if it believes the EU is trying keep the UK in the backstop indefinitely, it still must go through the existing arbitration panel as provided for in the Withdrawal Agreement.
The arbitration panel would have to conclude that the EU had consistently refused to comply with an earlier panel ruling against the EU for breaches of its "good faith" and "best endeavours" obligations under the treaty.
UK sources suggested there was significant "push back" from Dublin when the idea of a Unilateral Declaration emerged during yesterday's contacts between Brussels and London.
However, Irish sources insist the Unilateral Declaration does not alter the substance, content or thrust of the Withdrawal Agreement.
Sources also point out that the Unilateral Declaration is balanced by a commitment by the UK, within the declaration, to "uphold its obligations under the 1998 [Good Friday] Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island of Ireland".