Row over Irish border means Theresa May must finally decide whether the UK stays in the single market and customs union

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The big picture

EU27 recognition that the UK had made “sufficient progress” on the key article 50 issues – the financial settlement, citizens’ rights and the Irish border – was meant to have come at a crunch lunch between Theresa May and Jean-Claude Juncker.



After a weekend of frantic last-minute negotiations, Ireland, the EU27 and the British government had all signed up to an agreement – or at least, a form of words – that everyone thought would be signed off on.

There would be “continued regulatory alignment” between Northern Ireland and the Republic, allowing a soft (or invisible) border to remain. But no one told the DUP, on whom May relies for her Westminster majority.

They could not support a deal that meant Northern Ireland would leave the EU on different terms to the rest of the UK. Meanwhile Scotland, Wales and London all said that if Northern Ireland could get special treatment, they wanted it too.

And hardliners in the Conservative party came down firmly in support of the DUP’s position, leaving the prime minister stuck between multiple rocks and hard places. Whichever way she turns, she will upset someone.

In the wake of the Brussels debacle, the Brexit secretary, David Davis, suggested one solution: not just Northern Ireland, but the whole UK could stay in “regulatory alignment” (though not “harmonisation”, he stressed) with the EU.



But quite how this might square with May’s Brexit pledge to take Britain out of the single market and customs union – how being, in effect, a “rule taker” of the EU in an arrangement that looks very like staying in the single market and customs union – will play with the Brexiters remains to be seen.

It’s starting to look very much like the government has run out of fudge room. It never wanted to accept a trade-off between economic and regulatory alignment with the EU and restoring sovereign independence.

But the reality of the Irish border has exposed the impossibility of having its cake and eating it. No 10 may finally have to decide whether the UK stays in the single market and customs union – and say what “Brexit means Brexit” means.

The view from Europe

The EU was taken aback by Monday’s events. But conscious of May’s predicament, Juncker, the commission president, found kind words for her (a “tough negotiator”) and insisted agreement could still be reached before next week’s EU summit.

The prime minister now has less than a week to salvage a Brexit deal amid increasing signs of EU impatience. Time is fast running out to strike a deal at next week’s summit on 14 and 15 December; EU sources said any deal will have to be struck by the end of the week. One EU ambassador said:

We cannot go on like this, with no idea what the UK wants. She just has to have the conversation with her own cabinet, and if that upsets someone, or someone resigns so be it. She has to say what kind of trading relationship she is seeking. We cannot do it for her, and she cannot defer for ever.

On Davis’s plan to keep the whole of the UK in “regulatory alignment” with the EU, an EU official had this to say: “The UK will basically implement decisions taken in Brussels without having any influence over them … It makes the UK kind of a regulatory ‘protectorate’ of Brussels.”



Meanwhile, back in Westminster

The prime minister could face a stiff challenge from the Brexit hardliners in her own cabinet. Several leading Tories were quick to swing behind the DUP’s rejection of regulatory alignment, including former party leader Iain Duncan Smith, who said:

The prime minister is fully aware that when it comes to the border issue Northern Ireland remains an integral part of the UK. Therefore there cannot be any regulatory divergence between Northern Ireland and the rest of the UK.

Jacob Rees-Mogg said the DUP had “helped Her Majesty’s government stick to its own policy in these negotiations” and demanded: “Is it not essential that the red lines on maintaining the United Kingdom and on regulatory divergence whence the benefits of leaving come are indelible red lines?”

Their reactions followed an ominous letter to May signed by hardline Brexiters including Owen Paterson, Nigel Lawson and John Redwood listing seven conditions they said must apply before the UK makes any divorce payment to the EU.

Chief (and most difficult to achieve) among them were that the ECJ “cease to have any jurisdiction whatsoever” in the UK from Brexit day, that the UK be able to sign and implement free trade deals during the transition, that free movement must end and that the UK must be exempt from new EU regulations.

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In the Guardian, Simon Jenkins says Theresa May must call the DUP’s bluff. A minority party has humiliated the government by wielding a veto and thee prim minister must garner all-party support to push through a deal:

May must call the DUP’s bluff at once – and incidentally confront her own “rebel 50”. She must insist that it is this deal or the idiocy of the cliff edge. No deal has minimal support in parliament and in the country ... Now we see how damaging it is for Westminster to be choreographed for destruction rather than construction. Anyone can pick holes in May’s tactics and her strategy – including her denial of a customs union. Her failure to nail the DUP to the floor is costing her dear. But she must be given support from across the spectrum, when this is clearly in the national interest. A deal there must be with the EU. Northern Ireland cannot stop it.

In the New Statesman, George Eaton argues that the concessions the UK has already made – on “regulatory alignment”, the exit bill and the role of the ECJ – in the talks reveal the weakness of its hand, and confirm that it is the EU that has taken back control:

There is a distinct pattern to the Brexit talks: what the EU wants, the EU (eventually) gets … As is now emphatically clear, the EU27 and the UK are not equal partners. Though the British government maintains that “no deal is better than a bad deal”, it knows that it would pay a far heavier price than Brussels. As Britain is now learning to its cost, the EU’s divorce proceedings are designed to maximise its control. The great irony of Brexit is that never before has Europe had greater power over Britain’s fate. And all this for a deal that, whatever its terms, will be inferior to the UK’s present membership. If 2016 was the year that Britain voted to “take back control”, 2017 was the year that the EU did.

Tweet of the week

Ian Dunt of politics.co.uk spells it out, with brutal simplicity, for Theresa May: