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Brexit: David Trimble’s legal challenge to the Irish backstop is a hiding to nothing

Trimble: challenging the backstop. Brian Lawless/PA Archive

There has always been something of Don Quixote about David Trimble, the awkward politician who never really shrugged off his persona as a legal academic. In 1998 no one could deny the urgency with which he sought to right seemingly unrightable wrongs. In reaching the Good Friday Agreement – also known as the Belfast Agreement – the then leader of the Ulster Unionist Party (UUP) set out to build a new Northern Ireland, one free from the spectre of political violence and shorn of the sectarian discrimination of the past.

If Northern Ireland could change from being, in the ringing words of Trimble’s Nobel lecture, “a cold house for Catholics”, maybe the nationalist community would become less resistant to it remaining part of the United Kingdom.

Nearly 21 years later, Trimble has announced a bold move to capture the limelight: threatening a legal challenge against the part of the Brexit withdrawal agreement relating to the so-called Irish “backstop”, for breaching the Good Friday Agreement.

The principle of consent

The agreement is built on the consent principle, whereby the constitutional status of Northern Ireland as part of the UK can only be altered by a referendum vote in favour of a united Ireland.

Most of the substance of the agreement, however, dealt with changing governance and identity in Northern Ireland. Strand 1 established protections enabling people to identify as Irish or British (or both) as they chose, without discrimination. Strand 2 built up detailed arrangements for north-south co-operation in Ireland.

These arrangements provided a new constitutional settlement which sought to persuade nationalists to become soft unionists. Northern Ireland after 1998 established power-sharing arrangements to prevent nationalists from being locked out of governance and ensured that Northern Ireland would work closely together with Ireland on a range of policy issues. In Trimble’s account, the agreement secured the union: it placed Northern Ireland’s status as part of the UK in the hands of its own people, and it tackled the grievances that could create pressure for a border poll.

Enter Brexit

Despite Trimble’s pivotal role in ending Northern Ireland’s conflict, he and the party he led, the UUP, have found themselves sidelined in the last 15 years by the Democratic Unionist Party’s (DUP) electoral success.

As such, Trimble continues a quest for relevance in his political twilight. Brexit has provided one such outlet, particularly as the future of Northern Ireland and its border have become so prominent within negotiations. As my co-authors and I set out in our book, Bordering Two Unions, over the last two years Trimble has yo-yoed between insisting that the Good Friday Agreement has no relevance for Brexit and that the UK-EU negotiations threatens to undermine everything he worked to put in place in 1998. Not quite the impossible dream, but nonetheless a position that is difficult to comprehend.

The Irish backstop elements of the Brexit withdrawal agreement provide a variable level of alignment between the UK and the European Union after Brexit even if no comprehensive deal on their future relationship can be reached. In short, Northern Ireland would remain deeply aligned with the EU across trading rules and anti-discrimination law. Great Britain would become less aligned, an arrangement which could be further hollowed out if a future UK government is not dependent on DUP votes through a confidence and supply arrangement at Westminster.

This makes many unionists uncomfortable, and is why DUP leader Arlene Foster has presented the backstop as an existential threat that will “cause the break up of the UK into the mid and longer term”.

Arlene Foster’s DUP remain central to May’s Brexit calculations. Clodagh Kilcoyne/PA Archive

Punching holes in his own legacy

Trimble’s threat of a legal challenge smacks of his problem solving as a legal academic, no matter how hopeless the cause. Even if a judge agreed to hear such a challenge and not dismiss it as academic (on the basis that the withdrawal agreement might never be ratified) his two main arguments are paper thin.

Trimble’s first complaint is that the withdrawal agreement would change the devolved administration’s competences and introduce new institutional arrangements – possibly a reference to the committees that would be formed to oversee the operation of the Ireland/Northern Ireland Protocol within the withdrawal agreement. The problem with this claim is that the 1998 arrangements have never been set in stone. The Northern Ireland Assembly’s competences have changed over the intervening decades – adding responsibility for policing and justice, for example, in 2010. New institutional arrangements have also come and gone, such as the Independent Monitoring Commission.

The important factor is the underlying spirit of the post-1998 arrangements. Although the new arrangements in the withdrawal agreement were not created as a product of multi-party talks in Northern Ireland, they were put in place to defend the Good Friday Agreement arrangements against being undermined by Brexit. Which brings us to Trimble’s second complaint – that the backstop arrangements threaten Northern Ireland’s place in the UK without asking the consent of its people.

This argument runs straight into the problem that the UK Supreme Court already considered the question of how the principle of consent operates. When considering a 2017 legal challenge to Brexit, the court found that consent only applies to the question of whether Northern Ireland remains part of the UK.

Trimble’s possible legal challenge, if it ever gets off the ground, looks like a hiding to nothing. Worse, he is falling into line with Foster in adopting an approach to Brexit that punches holes in his own legacy.

Brexit threatens the deep connections that have been developed between Northern Ireland and Ireland since the 1990s. It stands to leave nationalists in Northern Ireland as Irish citizens in a non-EU territory, undermining many of their current EU citizenship rights. UK Prime Minister Theresa May’s assertion that it is a “concerning time” for people in Northern Ireland is laden with understatement.

Without a backstop in place to protect these interests, without even a working assembly at Stormont because of an ongoing breakdown in power-sharing, nationalists will continue to loudly question what happened to their voice in Northern Ireland’s governance. The promise of an inclusive Northern Ireland becomes the unreachable star. That poses far greater questions for Northern Ireland’s continued place in the UK than the backstop.

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