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Brexit’s Orange Backstop

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The devil in the detail of the Theresa May’s withdrawal agreement is undoubtedly the backstop.  The EU’s unpopular insurance policy could have the UK over a barrel.  It has also driven a wedge through the confidence and support agreement with the DUP.  Much has been written and said about what this means and what might happen in the coming weeks as Parliament debates the Government’s deal.  But there is another backstop – this time provided not through a draft treaty with the EU but by the workings of existing UK law.  A backstop that few seem to have noticed.

 

For those of us who keep a close watch on Parliament this high-octane crisis is keeping us on the edge of our seats.  Some remainers seem to think the defeat of Brexit is nigh, particularly with the Grieve amendment to the meaningful vote.  Confusion also reigns over the Advocate General’s opinion on calling the whole thing off.  But just as an ‘opinion’ from the lead advocate on Europe’s court isn’t binding on a Government neither is an amendment to a commons motion on a treaty.  The only thing that can stop the ticking down of the clock in the Withdrawal Act is further legislation.  If it is to get through the parliament in time, this legislation must be tabled by the Government itself.

 

Politicos and constitutional law buffs are in for a treat in the coming weeks.  Parts of the British constitution, which usually only see the light of day in undergraduate law essays, are set to becoming the stuff of TV news broadcasts.

 

Yesterday’s Parliamentary contempt proceedings are a harbinger of what is to come. If the Commons votes down the deal the political and constitutional waters may soon become uncharted.

 

This is due to Labour’s no-confidence motion which became a live issue at the weekend when the Democratic Unionist Party said they would support it. The DUP is meant to be in a confidence and supply agreement with the Government.  That is, before the Northern Ireland backstop become a ‘blood red line’.  Doubtless there are still Conservatives with a rather fuzzy view of the DUP.  Some seem surprised that northern Irish nationalist and protestant communities vote for different parties.  Others think that the DUP are simply bluffing and that voting with Corbyn would be a bridge too far.

 

Here is where ‘Orange Book’ liberal Nick Clegg’s Fixed Term Parliament Act comes into play.  This part of the Act has never been used or tested.  But it appears to allow the DUP to vote down the Government in a confidence motion sure in the knowledge that there is a 14-day cooling-off period.  During this legal gap the UK won’t be thrown into a General Election if the Conservatives manage to get the DUP back on-side and form a Government.  It would appear that this Lib Dem constitutional tinkering and the commons mathematics gives the DUP a “backstop” over who the Conservatives choose as leader.

 

The DUP has said repeatedly in recent weeks that they are willing to support working with the Conservative Party, but not its present leadership.  They are highly unlikely to accept any future leader who supports the present deal or indeed any deal which contains a version of the Northern Ireland backstop.

 

The question we could soon be facing might not be whether the ERG can muster the votes to trigger a leadership ballot.  It might instead be which leadership contender would be most likely to meet with the approval of the DUP.  Could that be a contender who recently addressed the DUP conference?  Not if his reception in Parliament is anything to go by.  Meanwhile the no-deal clock in the Withdrawal Act keeps ticking down to the 29th March 2019.  Only a government can stop it.