Foster’s best hope is that Westminster backs Benn Act

It’s hardly surprising that DUP deputy leader Nigel Dodds has indicated that a dual UK-EU customs plan cannot work. The DUP has always opposed joint authority in any context.

The difficulty with the DUP position is that the party has already accepted EU single market alignment in terms of regulatory standards — so the logic in opposing an EU customs union or customs partnership is less apparent. You can make a good case that regulatory alignment is as of much salience as a customs union.

Post-Brexit, alignment between the EU and UK for several years via a customs partnership is possible. But it will still be a marriage of two formally different customs regimes fused into a common tariff, free trade area. The DUP wants Northern Ireland to continue as a permanent part of the UK customs union, fused with the EU’s in the interests of seamless trade but still part of the UK’s regime.

Using terms as a customs partnership or common trade area with the EU fudges the matter to some degree, but under existing legislation the UK Government cannot allow Northern Ireland to form part of a separate customs union to Great Britain.

As the DUP never tires of saying, Great Britain-Northern Ireland trade is core business. All-Ireland trade is merely peripheral in comparison. The party remains steadfast in opposition to an Irish Sea border. But an Irish Sea border might never cost thousands of lives, unlike the one on

Irish soil.

There are serious questions over the workability of a customs border in either scenario.

The sheer number of border crossings and volume of cross-border traffic means that, without the infrastructure that everyone dreads and that both the UK and Irish governments say they will not impose, a worthwhile customs operation would be difficult.

Few can seriously conceptualise a customs operation between two different parts of the UK.

Boris Johnson (below) has seemingly moved from an absolutist position of outright opposition to EU alignment to one where it would be permissible if there is consent in Northern Ireland. Yet the government has been very vague over the form of that consent.

The current speculation is that it would be via a single act. But if that means a referendum it is an option fraught with difficulty in terms of framing, length of mandate and border poll surrogacy. The alternative is that the Assembly would have to reconvene to agree any opt-outs, otherwise the Johnson-Varadkar plan proceeds. The Assembly won’t come back on that basis, so the move is closer to joint authority than anything we’ve ever seen.

On Saturday week, Arlene Foster will address the DUP conference in Belfast. Last year’s event spent hours raging against the EU’s backstop proposals which could potentially keep Northern Ireland in the EU customs union and single market in perpetuity.

One year on and leadership speeches saying “EU single market good but EU customs union bad” are likely to confuse an already nervous membership, for whom the word “betrayal” is never far from their lips.

A shove towards an all-Ireland economy, no Assembly, no First Minister, no unionist majority, an RHI report looming and a confidence-and-supply deal lost is not a happy prospectus to place before those party members at the annual showpiece. Surely the best hope for the DUP is that the Westminster Parliament rejects the Johnson proposals and proceeds with the Benn Act, mandating an extension to EU membership. After all, voting the Johnson Plan through would surely gift the Prime Minister an election victory.

A Brexit delayed may yet turn into a Brexit cancelled, which would relieve the pressure upon Arlene Foster’s party.

And there is a fair chance that MPs, for all their previous preening and posturing over proroguing, may yet again fail to come to any sort of resolution of the Brexit issue. No decision may ultimately be more fruitful for the DUP than no surrender. Jon Tonge is Professor of Politics at the University of Liverpool and co-author of The Democratic Unionist Party: From Protest to Power (Oxford University Press)