It’s make-your mind-up time for the Government

It is time for the Cabinet to agree on what Brexit really means and which set of rules to play by

‘Constructive ambiguity” is a popular phrase among diplomats. Coined by Henry Kissinger, it reflects a belief that ambiguously worded agreements can help negotiators by delaying decisions on tricky subjects while making progress elsewhere. In doing so, ambiguity can create opportunities that work for both sides and make eventual agreement possible, even in unlikely circumstances.

Given the complexity of the task facing British and Irish diplomats – how to resolve the status of the Republic’s border with Northern Ireland, before the Brexit negotiations move on to Britain’s future relationship with the EU – you can see why ambiguous drafting appealed to them.

The trouble, however, is that constructive ambiguity relies on trust: not between the interlocutors, but between each negotiating party and their domestic political supporters. On Monday, Theresa May and her diplomats struck a deal with Ireland that satisfied both sides but, momentarily, blew up the coalition of support that sustains the Government at home. The offending text reportedly said: “In the absence of agreed solutions, the UK will ensure continued regulatory alignment with those rules of the internal market and the customs union which, now or in the future, support north-south co-operation and the protection of the Good Friday Agreement.”

Examine that sentence carefully and you will find several ambiguities. If this was to apply “in the absence of agreed solutions”, does it reflect what the Government wants to achieve in the Brexit deal it seeks? With which of the “rules of the internal market and customs union” – both of which the Government plans to leave – must we align to protect the Good Friday Agreement? Would the text commit Northern Ireland alone to “continued regulatory alignment” or would it apply to the whole of the UK? And what does “continued regulatory alignment” actually mean?

Leaving such important questions unanswered might be helpful for the negotiators at this stage but, without trust in the negotiators’ intent at home, constructive ambiguity can quickly turn to destructive ambiguity.

This is what happened on Monday. The DUP, whose votes in Parliament give the Government its majority, were concerned that Northern Ireland might be treated differently from the rest of the UK. Brexit supporters, meanwhile, worried that Britain might be heading towards a form of Brexit that would leave us so closely aligned with the EU that we might as well not leave.

Let us consider the Unionists’ concerns. Only last Thursday, Arlene Forster, the DUP leader, said she was in “constant contact” with ministers about the talks regarding the Northern Irish border. She cannot have been taken by surprise by the overall plan, but it is probable that she did not expect the precise form of agreed words.

Foster’s decision effectively to veto the agreement shows that she was not confident enough that Northern Ireland would be treated the same as the rest of the UK. She will insist that nothing is agreed that jeopardises Northern Ireland’s place inside the United Kingdom. Of course, ministers agree with her, as Mrs May said in the House of Commons yesterday. And there should be a way of regaining the DUP’S trust. The Europeans want to move to the second phase of talks – covering Britain’s future relationship with the EU – and Dublin has no interest in risking a no-deal outcome. Irish officials have already said that they might agree to clarify “that the agreement does not undermine the integrity of the United Kingdom”.

As I argued last week, a lasting solution for the Irish border is possible, but it can be reached only during phase two of the talks. The bigger problem now, however, is about the extent to which the Government thinks there should be regulatory alignment between the British and European economies. All modern free-trade agreements include details of how the signatories will ensure that their laws and regulations do not diverge too far from one another, and the trade agreement Britain seeks with the EU will be no different.

The question is the degree of that alignment, because there is a trade-off to be made. The closer the alignment, the more automatic the access to one another’s markets. The looser the alignment, the more freedom you have to change your laws and regulations, but the more barriers there are to trade.

Even CETA – the Comprehensive Economic and Trade Agreement between Canada and the EU, and the model, for some Leavers, for Britain to follow after Brexit – contains an agreement on “regulatory co-operation”, which will be policed by a Regulatory Co-operation Forum.

The Government has not yet agreed the precise model of regulatory alignment it will seek. But the Prime Minister has given a broad description of how she thinks it should work. In her Florence speech – which was agreed by the Cabinet – Mrs May said that we will “have to agree a set of rules which govern how each side behaves”, but that Britain should be free to “differ from the EU in our regulatory choices”. In other words, she will propose a model that allows Britain to decide its own regulations, within agreed parameters, and she will, consistent with that objective, seek trade that is as frictionless as possible.

When the moment comes to expand on that proposition, the Cabinet will inevitably divide. This is understandable, since the issue gets to the heart of what Brexit is about. The Chancellor will argue for the closest possible alignment, even if that means that after Brexit our laws and regulations must effectively remain the same as those of the EU. Michael Gove and Boris Johnson will oppose any definition of alignment that prevents Britain from deciding its own laws.

The Prime Minister has clearly been hoping to wait until the Brexit talks reach their second phase before seeking agreement within Cabinet on this divisive issue. She should still be able to do that, but Monday’s experience shows us that the Government will not be able to beat about the bush for very much longer: it will soon be time to decide what Brexit really means.