Arlene Foster should suspend judgement until the outcome of the negotiations

After Jo Johnson’s resignation from the government, the main focus today is the hardening view that Theresa May will fail to win a majority for any deal she negotiates with the EU.  This is in spite of claims that the UK and the EU are on the verge of agreement. It could be all- change next week. The DUP are an essential part of the calculations, but not the only part, as Mrs May is now assailed from both wings of her own party in the increasingly fraught Brexit battles.

The FT sets out the issues crisply.

One particular concern is whether Theresa May’s cabinet would accept a joint mechanism to decide on options for the Irish border, so any customs union can be viewed as temporary. Britain has also demanded that the fishing sector be excluded from any customs union for the whole UK — ensuring that the UK would not need to provide any upfront guarantees on EU access to British waters, a key demand of some EU member states with big fishing industries.

Instead, Theresa May’s negotiators want a clause in the agreement pledging they would negotiate in “good faith” to offer EU fishing rights in UK waters before the end of the transition period. Other diplomats were more guarded. Ms Weyand’s briefing started shortly before Jo Johnson, the UK transport minister, resigned in protest at how Britain had handled Brexit negotiations.

The EU side fear the setback may encourage Downing Street to delay further concessions until the political situation in Westminster is more stable. “This is far from stable, it is just not settled,” said one EU diplomat familiar with the briefing. Some British officials also played down expectations. “Things are deadlocked,” said one well-placed UK government official. “Talks haven’t proceeded as we would have wanted. It looks like things are going down to the wire.”

Ms Weyand told ambassadors there was some consensus with London on the structure of a protocol on the Irish border. This includes three options should Britain approach the end of its post-Brexit transition with trade negotiations continuing. One witness said the EU negotiators seemed “cautiously optimistic” for the prospects of a deal next week, which member states would then be allowed to assess and potentially amend.

The first is to reach a separate agreement on Northern Ireland to replace the backstop, which could either be the full EU-UK future economic partnership or arrangements specific to Northern Ireland.

A second option would be to extend Britain’s transition beyond December 2020. This would be a one-off extension, for a fixed period of time to be agreed by both sides through a joint committee that would also decide necessary UK financial contributions. The fallback option would be the new backstop for Northern Ireland, which would see the province under the EU’s customs and single market rules that allow the free movement of goods. At the same time, the entire UK would remain in a customs union with the EU. Ms Weyand described this “Turkey-minus”, according to diplomats, a reference to it lacking some of the regulatory provisions in the EU’s trade deal with Ankara.

In a Daily Telegraph article, Arlene Foster explains why she rejects Theresa May’s assurances that there are no “circumstances or conditions in which the ‘backstop to the backstop’, which would break up the UK customs territory, could come in to force -”  in other words, a permanent border in the Irish Sea.

If what is outlined in the reply is the type of deal the Prime Minister intends to conclude, then the DUP could not support a deal which annexes Northern Ireland from the rest of the United Kingdom.

The European Union ‘price’ for agreement appears to rise daily whether it be our fishing industry or an ever-growing list of level playing field commitments.

The ‘new’ idea of a UK customs arrangement does not appear to be a genuinely UK wide offer but a GB offer and an NI offer badged as one – Northern Ireland in THE EU customs territory and GB in A customs union.  The real intent is not to solve any land border issues in Ireland but to handcuff the UK to the EU, with the EU holding the keys.  The United Kingdom would be trapped.

The focus on customs arrangements should never blind anyone to a sea border of regulations.

The limited and low level checks that exist at the moment in Belfast and Larne do not compare to what would be the future arrangement.  Key industries in Northern Ireland would be subject to rules and standards with no democratic input to them. Rules would be made in Brussels rather than Stormont or Westminster.

The regulatory sea border with some caveats in the Prime Minister’s letter is still a sea border.

This is not haggling about checks but preventing Northern Ireland from being left in the EU with the Northern Ireland Assembly reduced to vassal status or the devolution settlement torn up.

Our most important trade flows are to be hampered and regulated by the EU….

We are ready to stand with those in Cabinet and in Parliament to work for a better deal. One which works for the whole United Kingdom.  We want the referendum result to be respected and the entire United Kingdom to leave together with a sensible deal.

What is Mrs Foster’s idea of a sensible deal? If it’s a straight to Canada plus deal, there’s no way to avoid triggering the full backstop. Has she fallen for “Project Fear?”  Is she over- egging her pudding by straying into regulatory and competition matters which are more to do with the overall temporary customs arrangement for the whole UK?

 Tony Connelly’s  analysis of a roller coaster ten days of Brexit makes it clear that the devil is in the detail of  the negotiations. In among them certainly  are Mrs Foster’s critical points. Much  hangs on what can be agreed to balance guarantees against the chances of  future  unilateral British departures  from essential EU rules, with EU concessions that the guarantee mechanisms don’t lock the UK in too tightly.

In her letter to Mrs Foster, Connelly’s judgement is that Mrs May was  “performing cartwheels” to say there could not be a Northern-Ireland specific border. But the late UK proposals for a “temporary customs arrangement”for the whole UK are just as problematical; all of which augurs badly for striking a deal this month.

The problem is that if the EU grants the UK a “bare bones” customs union, even a temporary one, it does not want to do so for free.

Under this arrangement, the UK would be granted tariff- and quota-free access to the single market.

In return, the EU will want to ensure that British companies cannot undercut European companies operating in the single market.

These so-called “level playing field” issues cover environmental, social, competition, state aid, health and safety protections that the UK would not normally be obliged to follow because it is leaving the single market.

There will also be a demand that EU fishing fleets continue to have access to UK waters, enraging Brexiteers.

“It implies alignment,” says the official, “and then effectively you’re in the single market.

“Despite all the red lines she had in the past, they now want to be in the customs union. The hold-up is because the British can’t decide what they want in terms of a UK-wide customs arrangement, and the regulatory alignment that would largely replicate what is being proposed for Northern Ireland.”

This is why a breakthrough keeps getting held up..

… until the temporary customs union is fully understood by the cabinet and made legally watertight by the Task Force, the more the other key issues such as the review, whether there is one backstop, or two backstops, or a hybrid backstop, will be left up in the air.

Having showered the DUP in reassurance, Mrs May went on to admit that “the unique circumstances of NI could require specific alignment solutions in some scenarios, provided they are consistent with the constitutional and economic integrity of the UK,”

Here she mentioned the Single Electricity Market, and all island animal and plant health, which have required distinct arrangements for Northern Ireland compared to the rest of the UK.

Without spelling out if Brexit would require any new regulatory differential between Northern Ireland and GB, Mrs May left a delicate thread of a hint that there would be.

But if there was it would “clearly be essential that the scope of any alignment in a backstop scenario is carefully circumscribed to what is ‘strictly necessary’ to avoid any hard border.”

The DUP looked and the letter and could only see the threat, and not the reassurance.