When Taoiseach Leo Varadkar spoke at length on Tuesday strongly recommending the deal reached between the EU and Theresa May in Strasbourg the night before, he carefully avoided touching on a particular point.
That was the third element of the British prime minister's latest Brexit package — a unilateral declaration by the UK, apparently interpreting its rights in a radically different way.
The declaration has not been circulated by the EU Brexit taskforce along with other statements and scripts, and European Commission president Jean Claude Juncker was notably silent on the issue at his press conference with Mrs May. They seem to be saying it is ‘none of our business’.
“The British are speaking to themselves,” one Irish source said.
And there’s no point in frightening the horses just before they run.
The joint interpretation of the withdrawal agreement, which is to be given an enhanced legal status, does not provide the UK with a means it had sought to unilaterally exit the Irish backstop should an acceptable alternative not prove forthcoming.
Undaunted, and facing a mountain to climb in winning over a House of Commons majority for her deal on Tuesday night, May has nevertheless decided to assert such a right. Or give the appearance of doing so.
Marginal
Both other “agreed” elements of Monday’s package represent only marginal advances on the backstop assurances that had previously been agreed, or on commitments to work urgently and in good faith to replace it.
And, having failed to reopen the withdrawal agreement, Mrs May has decided to provide backbench Brexiteers what they have always sought, a macho assertion that the UK can simply do its own thing.
Her argument, reprises a case made by the British for some time that Article 50, the departure clause which is the basis of the withdrawal agreement, provides a legal basis only for temporary measures.
Should the backstop provisions appear to be acquiring permanence because of bad faith on the part of the EU in negotiations on an alternative, he argues, the UK could deem its obligations under the backstop to be withering away. And it could walk away from them.
In those circumstances , the unilateral declaration says: “Nothing in the withdrawal agreement would prevent it \[the UK] from instigating measures that could ultimately lead to disapplication of obligations under the protocol.”
Arbitration
Admittedly the declaration appears to hedge its bets by then referring to such a move as being “in accordance” with the withdrawal agreement’s provisions — an ambiguous reference that can either be seen as an acceptance of the latter’s procedures, notably of binding arbitration, or a claim to support for the UK’s unilateralist interpretation of the agreement.
But although couched in legal language the declaration is essentially a political document, binding on no-one, whose function is to reassure those looking for an opportunity to back Mrs May. It’s all about the appearance it gives.
For the EU and Irish lawyers the British argument is flawed. They say that if provisions are deemed necessary for achieving an orderly withdrawal from the union — and the backstop is such — they can be sustained under Article 50. Ultimately it is a matter for the courts.
But that is a long way down the road and if the UK interpretation helps to kick the can down the road, no one is going to argue publicly with it.