Has David Trimble has provided the DUP with the crucial argument for supporting the deal?

Has their old enemy David Trimble provided the DUP with useful ammunition to support Mrs May’s deal?  We’re told she will only make a third attempt at securing the Common’s agreement this week if she can be sure of winning a majority. And for that DUP support is crucial, not only in terms of numbers but for their influence with the ERG.

“It was the Attorney General wot wrecked it” was  the Brexiteer verdict after last Tuesday’s debacle, when their star chamber of legal eagles including Nigel Dodds declared his convoluted case invoking the Vienna Convention on Treaties as “ badly misconceived.” And in the fraught atmosphere of the Commons, a phrase like “he Vienna Convention” was hardly  going to set pulses racing.

They pointed out that the Vienna Convention can only be used “in extreme circumstances”, and that even the fall of the Soviet Union in 1989 did not provide enough reason to trigger it.

Star chamber member Martin Howe QC told the Evening Standard: “The leading case in the International Court of Justice shows this requires radical change of circumstances.

“The fall of the Soviet Union, disappearance of the Warsaw Pact, and dissolution of Czechoslovakia, were not sufficient to satisfy this ground.

“The other issue is, under Article 62, the change of circumstances has to be unforeseeable. As we are talking about this ‘change of circumstances’ now, it cannot be unforeseeable.”

But there has been a radical rethink .  In his  doorstep interviews emerging from the Cabinet Office, Dodds spoke warmly and kindly of Cox, who had been present at the negotiations.

And now David Trimble has entered the fray. Trimble is ( or was) seeking judicial review of the backstop  on the grounds that it  breached the consent  provisions of the Good Friday Agreement. It was a “top down” imposition on Northern Ireland particularly on Unionists which left them with no say over whether to remain within it even if GB left.  (Nationalists presumably have the Irish government). Now Trimble and his former adviser Paul Bew have  embraced Cox’s case, arguing what’s more, that the  EU have already accepted it.

In a note for the Policy Exchange think tank  David Trimble and his former adviser Paul Bew argue that on the contrary the backstop would have a destabilising effect on Northern Ireland and that this is  recognised in the backstop itself.

The Attorney General has also made it clear that harm to the principles of the Good Friday Agreement might constitute such a socially destabilising effect. This is a claim which has surprised and disconcerted some observers. But in fact such such surprise is not warranted. The text of the Withdrawal Agreement is replete with references to the potentially destabilising effects of the backstop. Article 18 states explicitly that ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate measures’. The EU accepts that such measures will ‘disturb’ the functioning of the Protocol though it hopes such disturbance will be limited.

Essentially they contend that future economic north-south economic relationships should be conducted though the structures of the Good Friday Agreement than exclusively through  the EU/backstop process.   In the GFA’s north-south provisions, mutual agreement is necessary. Does this mean that the Assembly with cross community consent would have an equal right of initiation and a veto with the Republic and therefore the EU? And would the EU – including the Republic   –  accept this reading ? Even Mrs May has not gone that far, only pledging to adopt the Assembly’s recommendations in negotiations under the backstop.

This is unlikely to be answered quickly or positively. But might it be enough to allow the DUP to support the deal and therefore to get it through? A great deal hangs on it

From David Trimble and Paul Bew’s Policy Exchange paper 

Not a word of Mrs May’s Withdrawal Agreement of November 2018 – so heavily defeated twice in Parliament – has been changed. But we are now closer to acceptance of the same agreement. A widespread war weariness on all sides is a significant factor. But the Government has succeeded in securing substantive changes that will affect and limit the impact of the Irish backstop, if it is ever put in place at the end of the transitional period. The chances of the Prime Minister getting the deal through Parliament have improved.

Three sets of changes are notable. First, technological solutions to the Irish border question – not seriously considered by either the UK government nor the EU in November 2018 – have become ‘mainstream’…

Second, there is the return of paragraph 50 from the December 2017 joint agreement with the EU .(Mrs May in effect restored it last Tuesday).

Third, and most importantly, the UK Government has stepped away from the view of the role of Good Friday Agreement that it had passively accepted from the EU/Irish negotiators. It has returned to the rather more obvious and correct view that the Agreement – the clue is in the word ‘agreement’ – is the possession of both communities in Northern Ireland: Unionist as well as Nationalist. This has opened up the possibility of a deal with the DUP.

What is new here is the way in which the UK sees it is possible to uphold the Good Friday Agreement whilst disapplying obligations under the Northern Ireland and Ireland Protocol, contained in the Withdrawal Agreement. In December last year, the UK Government insisted that the Protocol was necessary to uphold the Good Friday Agreement. In January it insisted that there was no contradiction between the Good Friday Agreement and the Protocol. In March, with the EU’s tacit acceptance, we now say there can be such a contradiction and that the UK will be justified in taking unilateral steps to deal with such an issue.

From the Times story.

As the prime minister moved to win over more opponents, she was told that some of those who had pledged support could withdraw it if she did not get the Democratic Unionist Party onside.

She will receive a significant boost today when Lord Trimble, who tried to take the government to court over her deal, says that she has secured substantive changes that would limit the impact of the Irish backstop.

The intervention from one of the architects of the Good Friday agreement, which secured peace in Northern Ireland, could help to bring on board Tory Brexiteers, who have used the threat to the integrity of the UK as a reason not to fall into line.

It could also influence the DUP, whose failure to support the deal has been fatal. Yesterday, as the Northern Irish party remained locked in negotiations with ministers, Philip Hammond, the chancellor, suggested that more money could be made available for the devolved administrations.

David Davis, the former Brexit secretary who voted for the agreement in the Commons last week, told The Times: “If they have not answered the Northern Ireland question properly I might not vote for it this time. I took them on trust last week. If they do not solve the Northern Ireland issue then they have got no chance anyway. If the DUP don’t back it then some of us who did could change our votes.”

He predicted that with the support of the DUP, Mrs May had a “50-50 chance” of getting her agreement with Brussels through parliament.

Jacob Rees-Mogg, chairman of the ERG, is understood to be prepared to reconsider his opposition to the deal if it gains the support of the DUP. Government sources also believe that Iain Duncan Smith, the former Tory leader, could be persuaded.

L;ord Trimble’s intervention is useful to Mrs May. Last month he said that he and others were planning to initiate a judicial review because the terms of the backstop breached the Good Friday agreement. In a report today by the Policy Exchange think tank, he and Lord Bew, a crossbench peer, point to a statement by Stephen Barclay, the Brexit secretary, who suggested that the Vienna convention could provide a basis for the UK to leave the backstop if it took the reasonable view that the 1998 Good Friday agreement was not being protected.

Lord Trimble, the former leader of the Ulster Unionist Party who sits in the House of Lords as a Tory, has shared the concerns of the DUP that the backstop would separate Northern Ireland from the UK, and Westminster would not be able to leave it unilaterally.

Later…

Robert Peston spells out what ” no regulatory divergence ” already offered by Mrs May at the despatch box actually means..

The prime minister’s frantic last attempt to persuade Northern Ireland’s DUP to back her third meaningful vote on Tuesday involves a promise that if the controversial backstop is ever triggered, Great Britain would adopt any new food and business rules that could be forced by the EU on Northern Ireland.

This is a high risk offer by Theresa May to NI’s unionist party – which has huge clout with her because without its votes in parliament her government would collapse..

.

With hopes for a government majority for MV3 fading during the day.. and if UK id forced to accept a  nine month delay, Peston is less than enthusiastic about some of  the implications…

Well at that point the DUP would have maximum leverage to secure not just the notorious Stormont Lock – or pledge from the government any new regulations forced on Northern Ireland while the backstop prevails would also be imposed on Great Britain (see what I wrote yesterday) – but also presumably untold squillions for pet projects in the province.

If in those circumstances May’s deal was finally ratified, this would be pork barrel politics of epic proportions, the government’s DUP tail wagging an entire nation into a Brexit destiny that even its little troop has always held in contempt.

Interesting line from Rees- Mogg. Is he about to back the deal?

From Guardian Live

• Rees-Mogg said that he would have voted remain in 2016 if he thought Brexit would lead to Scottish independence. Explaining why the views of the DUP were so important to him, he said:

Ultimately the United Kingdom is more important to me than the European Union. So if the DUP felt the United Kingdom were being divided up in the deal, then that would mean it were impossible to vote for the deal under any circumstances. The one thing that would have changed my mind in 2106 would had I believed the scare stories that Scotland would leave the United Kingdom if we voted to leave. I did not think it was true, and therefore I was happy to vote to leave. But the United Kingdom is my county, and I don’t want to see my country chopped up. So the DUP’s position is very significant.

• He said that, if Brexit were blocked now, it might never happen. Arguing that a two-year extension would be the same as remaining, he said:

Mrs May’s deal, however bad it is, means that we are legally outside the European Union.

If we remain, we will never leave. We have got as close to leaving as we will ever get under these circumstances.

If it is thwarted now no one is ever going to allow us another chance to have a vote. The whole weight of British establishment opinion will prevent that ever happening again.