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ConservativeHome understands that the former Attorney-General, who expressed his reservations about the Bill yesterday in the Times, will support it were the Government to make five concessions.

These are concentrated on a guarantee to the Commons that the Government will not trigger the safeguarding measures save in the following circumstances.

  • A manifest breach by the EU of its duties with regard to good faith, best endeavours or both in the execution of the Withdrawal Agreement and the Northern Ireland Protocol.
  • If the arbitration panel set up under the terms of the Agreement rules that this has taken place.
  • Where pending a decision by the panel “it is urgent and necessary to take temporary and proportionate measures to the protect the fundamental interests of the UK”.
  • Under the safeguarding provisions of the Agreement itself (which both the UK and the EU are entitled to use).
  • After the Commons has voted to approve the implementation of the measures by passing a statutory instrument in the form of the affirmative resolution procedure.

In our view, two points arise from putting this list of proposals alongside the Bill as it stands.

  • First, the Government and most of its critics are now not that far apart.  Very few, if any, believe that no UK government should ever be in the position where it can be accused of breaking international law.  Most, like Cox, think that if necessary Ministers must sometimes take action that will lay them open to that charge (as in his third point above).  But they’re opposed to this Government declaring that the safeguarding measures would definitely break international law if applied when it’s not clear that these would.
  • Second, Boris Johnson appears to have conceded Cox’s last point by saying that “if the powers were ever needed, Ministers would return to this House with a statutory instrument on which a vote…would be held”.  That is consistent with the affirmative resolution procedure being used, as Cox wants.  However, a vote on a statutory instrument would only give the Commons the opportunity to bar the application of the measures retrospectively – not in advance.

So the Government is presently holding its line on not conceding such a vote.  But the safeguarding measures won’t be debated until next week.  And new compromise proposals or / and last-minute offers, sometimes made from the despatch box, have a way of emerging when controversial parts of Bills are being considered.

More broadly, the Government is distancing itself from Brandon Lewis’ claim in the Commons last week that the measures would breach international law if applied.  Though it has not disowned Lewis’ statement, Johnson suggested yesterday that the EU isn’t negotiating in good faith.

If so, that would make the legal position on any triggering of the safeguarding measures more complex.  But we repeat: they may never be implemented, since they won’t be in the event of these negotiations concluding with a deal, which is still possible – and arguably more likely than otherwise.

– – –

Playbook today lists 30 Conservative MPs who didn’t vote. The usual warning about absentions not necessarily being deliberate applies to the list below.  (So for example, Theresa May is abroad.)

  • Stuart Andrew
  • Crispin Blunt
  • Karen Bradley
  • Graham Brady
  • Rehman Chishti
  • Christopher Chope
  • Geoffrey Cox
  • Jackie Doyle-Price
  • Tobias Ellwood
  • Liam Fox
  • George Freeman
  • Richard Graham
  • Stephen Hammond
  • Oliver Heald
  • James Heappey
  • Damian Hinds
  • Simon Hoare
  • Sajid Javid
  • Edward Leigh
  • Jack Lopresti
  • Tim Loughton
  • Theresa May
  • Bob Neill
  • Owen Paterson
  • Julian Smith
  • Ben Spencer
  • John Stevenson
  • Gary Streeter
  • Charles Walker
  • Jeremy Wright

155 comments for: The changes that Cox wants from the Government to the UK Internal Market Bill

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