Lord Trimble’s court action against the government over the Brexit backstop also involves the man whose historic 1981 European Court of Human Rights case decriminalised homosexuality in Northern Ireland.
Jeffrey Dudgeon, who is now an Ulster Unionist Party councillor in Belfast, is joining Lord Trimble in the litigation, as is the Irish-born journalist Ruth Dudley Edwards.
Mr Dudgeon told the News Letter that it was the first time that he had taken the government to court since the high-profile case in which he ended Northern Ireland’s status as the last part of the UK in which homosexual acts were illegal.
The judicial review case, which also involves the Northern Ireland-born constitutional lawyer Austen Morgan, is being taken before the High Court in London. It seeks a declaration from the court that the proposed backstop – which could see Northern Ireland diverge from the rest of the UK after the backstop – would be contrary to the Belfast Agreement of 1998.
The case is requesting that the court decide that the issue should be dealt with by the British-Irish Intergovernmental Conference, the British-Irish body established by the agreement to deal with issues relating to Northern Ireland.
That would take what until now has been an EU-UK issue and turn it into a UK-Republic of Ireland bilateral issue.
Those taking the case argue that it is the only route to both ensuring there is a form of Brexit which is compliant with the agreement and which rules out a no-deal departure from the EU.
Until now, the legal basis for the case has not been clear and yesterday several lawyers questioned how such a case could be taken.
However, given that the relief which the claimants are seeking from the court is relatively weak, it appears that the case is largely intended to force the issue on to the agenda and to counter the oft-repeated claim that Brexit without the backstop would breach the agreement.
A document circulated to potential supporters and obtained by the News Letter states: “The case is intended to persuade the UK – either by concession or order – to begin a work programme with the Irish on [ensuring] no hard border immediately.”
The document, which is an attempt to persuade supporters to financially back the court case, lists three possible defendants: The prime minister or the Chancellor of the Duchy of Lancaster and the secretary of state for Northern Ireland,
It says that if the claimants may allege that the defendants “have breached the Belfast Agreement continually from 29 March 2017” and that the Belfast Agreement “remained relevant, under article 30(2) of the 1969 Vienna convention on the law of treaties” in respect of the border, which is under its ambit.
The claimants have set up a crowdfunding appeal – at www.crowdjustice.com/case/judicial-review-of-irish-backstop/ – to secure donations. As of last night, it had raised more than £3,500.
The historian Lord Bew, who voted Remain in the referendum, told the News Letter: “The more people raise the issue about the incompatibility of the withdrawal agreement as it stands and the Good Friday Agreement the better.”
Speaking on the Today programme on Radio 4 yesterday, Lord Trimble said that the withdrawal agreement “turns the Good Friday Agreement on its head and does serious damage to it”.
The former UUP leader said: “The bit of the agreement that you have to handle with care is cross-border arrangements and we’ve managed to do that successfully. But the EU has come in and in this exit agreement ... they stripped out a significant number of competencies out of the devolved administration and so therefore out of the Belfast Agreement and put in place a number of top-down structures and a UK-EU body which is going to supervise.”
Speaking of his action, he added: “If it reminds people to keep their promises, it will be a good thing.”