With the No Deal option off the table a soft Brexit become more likely. In the ultimate paradox, this decision which flies in the face of Theresa May’s strategy actually strengthens her very weak hand just a little. By just two votes, she fended off a bid for parliament to take back control and was able to specify a short period of extension to 30th June, if the EU agrees.
The ERG believe this could be their last throw to save their vision of Brexit and replace the backstop. Thereafter by their reckoning, the UK is putty in the EU’s hands. In their own re-run of last week, their star chamber of legal eagles including Nigel Dodds (a First in Law from Cambridge) have been poring over a new attempt by the Attorney General Geoffrey “codpiece” Cox to create a get- out -of- gaol card from the backstop.. And it’s not looking good, according to the Daily Telegraph.
In the advice, the Attorney General states that Britain will be able to end the backstop if it having a “socially destabilising effect on Northern Ireland”, which would be considered a “fundamental change” of circumstances under the terms of the treaty.
He argues that Britain would have grounds to break off from the backstop if it was having a “socially destabilising effect on Northern Ireland”.
He says: “Those facts [the change of circumstances] might, for example, be that the prolonged operation of the Backstop was having a socially destabilising effect on Northern Ireland, contrary to its objectives.
“Article 62 of the Vienna Convention on the Law of Treaties, which is reflective of the customary international law doctrine rebus sic stantibus (‘things thus standing’), permits the termination of a treaty in such circumstances.
In their legal opinion, the star chamber – which includes Nigel Dodds, the deputy leader of the DUP – says that Mr Cox’s interpretation of the law is “clearly erroneous”.
It argues that Article 62 of the Vienna Convention can only be invoked under “extreme circumstances” and highlights case law showing that the fall of the Soviet Union was not considered sufficient.
The Star Chamber states: “Saying they are ‘exceptional’ does not make them so in the eyes of international law. Hungary undoubtedly thought there was something ‘exceptional’ about the collapse of Soviet tyranny and the liquidation of the other State Party with which Hungary had concluded the treaty in question. But that was not enough.”
Cox’s opinion come close to the view of David Trimble he’s attempting to test in court, that the backstop is in breach of the GFA principle of consent because the NI specific backstop is a “trap” that imposes changes to the constitutional position without consent or an agreed exit. The amended deal rejected on Tuesday would have required the Assembly’s consent for the activation of the backstop or any other change in status. Cox sees it as grounds for scrapping the backstop altogether. But it seems that the Brexiteer lawyers with Nigel Dodds among them don’t agree with Cox, So if they are among 75 MPs needed to switch in support of Mrs May’s on Tuesday, it’ll be fear of losing Brexit that’ll do it and not a fanciful and opportunist attempt to Play the Orange Card.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London