As Theresa May flies into Belfast today she faces the threat of being taken to court by former first minister Lord Trimble over the proposed Northern Irish backstop.
Striking at the heart of the justification for the backstop, the Conservative peer yesterday announced that he was putting together a judicial review which will argue that it breaches the 1998 Belfast Agreement of which he was the key unionist architect.
The former Ulster Unionist leader, who won the Nobel peace prize for his role in the agreement, is arguing that the proposed backstop breaches that accord – in direct conflict with those who argue that such post-Brexit special status for Northern Ireland is essential because of the agreement.
Whether the case ever comes to court, and regardless of the legal outcome of any proceedings, the declaration by Lord Trimble represents a political difficulty not just for Mrs May, but for those such as the EU and Dublin who have argued that the backstop is essential to preserve the agreement.
His threat of judicial review proceedings emerged yesterday just hours after Downing Street announced that the prime minister would be coming to Northern Ireland today.
In what will be the prime minister’s third visit to Northern Ireland in seven months, Mrs May will this afternoon make a speech about Brexit at a critical moment in the process of the UK’s leaving the EU.
Lord Trimble, who is a firm believer in Brexit, became a Conservative peer in 2007 but has been increasingly outspoken in opposition to the backstop proposal which could see Northern Ireland remain tied to key areas of EU regulation even if the rest of the UK was to diverge.
The legal threat emerged in a statement from the pro-Brexit campaign group Global Britain. The statement said that Lord Trimble “and others” are “planning to take the government to court over the Protocol on Northern Ireland – which includes the so-called ‘backstop’ – as it breaches the terms of the Good Friday Agreement”.
The statement said that Lord Trimble “plans to initiate judicial review proceedings to ensure that the protocol is removed from the Withdrawal Agreement”.
It added: “Lord Trimble says that alternative arrangements – as outlined in A Better Deal And A Better Future – should be put in place instead”.
Last night neither Lord Trimble – who is a former law lecturer at Queen’s University Belfast – nor Global Britain could be contacted for clarification about the issue.
Lord Empey, another unionist negotiator of the 1998 agreement who receives the Conservative whip in the House of Lords, told the News Letter that he had spoken to government ministers yesterday about Lord Trimble’s action and they were “not happy bunnies”.
He told the News Letter that the government had until now been dismissive of the argument from the historian and former Trimble aide Lord Bew that the backstop breached the 1998 agreement: “I have no doubt that on the political front Lord Bew’s analysis is right because whereas more people focus on the principle of consent which is very important, the fact is that the withdrawal agreement would take away from the north-south bodies some of the functions and move them to an authority over which no elector in Northern Ireland would have any control – so I do think they have a point.”
Mrs May appears to be planning to spend two days in Northern Ireland, with DUP leader Arlene Foster last night revealing that she will meet the prime minister in Belfast on Wednesday.
The UUP said that its leader, Robin Swann, will also meet Mrs May in Belfast on Wednesday morning.
Three weeks ago Mrs Foster’s 10 MPs helped to overwhelmingly defeat Mrs May’s Brexit deal because of the backstop. But last week they played a crucial role in a close Commons vote which saw a narrow majority of MPs agree to renegotiate the Brexit backstop if there is to be a deal with the EU.
Yesterday Mrs Foster said that the DUP message to Mrs May would be that “the backstop is the problem. It drives a coach and horses through the Belfast Agreement’s principle of consent. If implemented, it would build a new border between Northern Ireland and the rest of the United Kingdom. Such an outcome would undermine both the economic and constitutional integrity of the United Kingdom”.
However, Mrs Foster’s statement ruled out the current backstop, rather than ruling out any backstop.
Some DUP MPs have indicated that a time-limited backstop could be acceptable.