Opinion

Newton Emerson: Time to call a one-off assembly vote on the Brexit backstop?

Could a one-off sitting of the Stormont assembly to vote on the backstop solve Brexit?
Could a one-off sitting of the Stormont assembly to vote on the backstop solve Brexit? Could a one-off sitting of the Stormont assembly to vote on the backstop solve Brexit?

THERESA May did at least find the gumption in Westminster this Monday to fire a warning shot at the DUP.

The prime minister's entire 700-word statement on postponing the vote on the EU-UK Withdrawal Agreement was about Northern Ireland.

She referred from the outset to the non-DUP voting majority, in border areas especially, saying: "If this House cares about preserving our Union, it must listen to those people, because our Union will only endure with their consent."

May ended with a promise to seek "new ways of empowering the House of Commons to ensure that any provision for a backstop has democratic legitimacy".

Her language was sufficiently striking for RTE Brexit correspondent Tony Connelly to ask if she was hinting at a border poll.

That might have been the long-term allusion but it was issued as a warning, not a threat.

If any poll were to be held imminently in Northern Ireland over Brexit it would have to be about the Withdrawal Agreement itself, as that is the matter at hand.

It is surprising this idea has not been more widely raised. There have been fairly serious discussions over the past year about referendums to unlock the Stormont deadlocks of same-sex marriage, an Irish language act and abortion.

Labour's shadow secretary of state was reportedly in favour, as were figures in the UUP.

A 'backstop referendum' could unlock Brexit by providing democratic legitimacy to the one part of the Withdrawal Agreement around which most MPs are basing their stated objections.

Labour might cook up some new objections - its cynicism on Brexit is appalling.

However, it would be hard to see the SNP and Lib-Dems denying Northern Ireland a vote, or dismissing the result.

One reason such a vote is not being suggested now is that time has clearly run out to hold one.

A referendum could not be called without knowing what we would be voting for, the government claims the Withdrawal Agreement can be renegotiated into January, an election takes a minimum of six weeks to arrange and Brexit day is the end of March.

Northern Ireland might just about get its verdict in a few days before the March deadline but that is too long for MPs to wait for an answer and not enough time to digest it.

There is another, potentially quicker way to secure democratic legitimacy, in a form parliamentarians would have to respect.

The Stormont assembly could be recalled for a one-off vote. Its anti-Brexit parties - Sinn Féin, the SDLP, Greens and Alliance - have a comfortable majority and a joint platform of endorsing the backstop.

The two most obvious problems with an assembly recall are that it would require special legislation under present circumstances and unionists would just block a Withdrawal Agreement vote with a petition of concern.

Both these birds could be killed with one stone. In October, the Northern Ireland Office rushed special legislation through Westminster in two weeks flat to extend deadlines for restoring the assembly and the executive.

This involved fundamental tinkering with the law enacting the Good Friday Agreement, including the postponing of elections.

It also sought to put indirect rule on a legal footing by enabling civil servants to take decisions without ministers.

A one-off assembly recall is straightforward by comparison and legislation for this could be prepared at once, to be on books by January for immediate use.

The same legislation could also suspend or amend the petition of concern, which is in the Westminster law enacting the Good Friday Agreement and hence not devolved.

Is tweaking with the petition over Stormont's head any more of an insult to devolution than tweaking with elections or ministerial decision-making?

The mere threat of this might be enough to concentrate DUP minds and the party would be on thin ice objecting to a recall.

It has spent the past two years claiming to want Stormont back without preconditions. It also spent the final year of the last suspension, in 2006, demanding the assembly be recalled without the executive to vote on difficult issues.

Unionists would probably end up boycotting any assembly vote on the Withdrawal Agreement if they were denied a petition of concern.

However, as their presence would not change the result, would their absence invalidate it?

A Westminster desperate for Northern Ireland's verdict might be inclined to skip over that question.

I admit it would be extraordinary if any of these developments came to pass. But who can deny we are living in extraordinary times?

newton@irishnews.com