Well, she managed to get 'something' from her last minute dash to Strasbourg (Note: it's always May doing the dashing isn't it? What does that tell us?). Whether it will be enough to get the deal ratified remains to be seen later today. The media is full of speculation this morning and I think it's fair to say nobody knows if the 'legally binding' changes will do the trick. The BBC (HERE) has the best summary as far as I can see and also provides links to the two documents that the PM agreed last night.
They are the 'joint legally binding instrument' (HERE) on the withdrawal agreement which the UK could use to start a 'formal dispute' against the EU if it tried to keep the UK tied into the backstop indefinitely. The other is a 'joint statement' (HERE) about the UK and EU's future relationship which commits to replacing the backstop with an alternative by December 2020.
The 585 pages of the WA are not amended or changed at all in any way.
In effect the joint instrument says the EU will negotiate in good faith and the statement says they will work quickly to get the trade deal settled by December 2020.
Westminster will be full of MPs in huddles today poring over the documents and discussing the meaning of words. All waiting to see what our bumbling Attorney General thinks this afternoon. Will he change his advice? Of course he will - he helped to negotiate the documents. I use the word 'helped' in the ironic sense. He is bound to say all is well now - but nobody will believe him. His reputation has suffered serious damage already but he seems certain to finish the job and destroy it altogether.
This morning on Radio 4 Dominic Grieve, himself a former AG, says the new documents actually change very little and he has also spoken to David Anderson QC who agrees with him. Kier Starmer, Labour's shadow Brexit Secretary and another lawyer made exactly the same point last night. Starmer said the PM told the HoC on 14th January that the reassurances she got before Christmas were also 'legally binding' in which case nothing has really changed.
The extra documents say the same thing that the PM said in January but now in a bold font with capital letters and spoken by a man in a gown and wig. It is the legal equivalent of shouting.
In any case, Grieve says he will still vote against the deal and he will sway others I believe. Steve Baker, the ERG shop steward is also not convinced.
The two documents are difficult to read because they refer to other documents. From page 1 of the Joint Instrument, viz:
Recall that after the end of the transition period, any dispute concerning compliance with Article 5 of the Withdrawal Agreement, Articles 2(1) and 20 of the Protocol on Ireland/ Northern Ireland will be subject to the dispute settlement mechanism enshrined in Articles 167 to 181 of the Withdrawal Agreement.
Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.
Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.
What does 'in the sense' of Article 31 of the VCLT mean? This is the article:
Article 31 - General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
It's really just a grand way of saying the two documents are to be read as part of the Withdrawal Agreement and have the same purpose in the 'interpretation' of the WA. But we knew that already didn't we?
Will it be enough to stave off another humiliation? No. We will see tonight that it's just a rabbit and a hat - nothing more.
