There’s increasing chatter in Westminster about a possible Brexit breakthrough. The argument goes that if the Tusk / Juncker letter of the 14th of January was turned into a protocol—which would be legally binding, then there would be grounds for Geoffrey Cox to change his legal advice. Why, because the letter declares that:
‘The European Commission can also confirm our shared understanding that the Withdrawal Agreement and the Protocol on Ireland/Northern Ireland:
Do not affect or supersede the provisions of the Good Friday or Belfast Agreement of 10 April 1998 in any way whatsoever; they do not alter in any way the arrangements under Strand II of the 1998 Agreement in particular, whereby areas of North-South cooperation in areas within their respective competences are matters for the Northern Ireland Executive and Government of Ireland to determine’
The theory goes that if the backstop were to become permanent, it would contradict the Good Friday Agreement as it would replace North / South cooperation with a UK / EU construct. So, the UK could use this protocol with the withdrawal agreement to justify quitting the backstop if it was clearly becoming permanent.
One QC who I have run the theory by says that this is a legally defensible argument. But politically, the question is whether the government wants to embrace this particular interpretation of the Good Friday Agreement. If it does, then the next question becomes whether Nigel Dodds — a lawyer by training — accepts it or not. If he does, then the DUP would be back on board and Theresa May might have a chance on Tuesday.