The PM is out of options: however we Brexit, someone will be betrayed

The Irish border issue is past the point where all parties can be satisfied. Tough choices lie ahead

At last. On Friday, Theresa May gave the outlines of a coherent Brexit framework, having finally steered her Cabinet into a decision of sorts. It is likely to prove impossible to negotiate this outcome with an increasingly belligerent EU and, if so, our Government still doesn’t know what it will do. Mrs May, however, will not be the one to find out.

Instead, this year will be spent dealing with the fallout of her decision in December to make a commitment on Ireland whose knock-on effects, as it is now finding, are constitutionally enormous. Encouraged by Labour and the CBI, the EU and Dublin seem to believe that the Irish border can be used as a doorstop, wedging Britain firmly inside the customs union. Unbelievable as it may seem to many Brexiteers, they could well be right.

This is all backwards. From the beginning the British argument has been that there is no point trying to make arrangements for the Northern Irish border before having agreed roughly what the broader EU-UK trading relationship will be. This is obviously true, and yet we are now in the opposite situation, whereby the agreement on Northern Ireland could end up determining the whole future of Brexit. Because our Government is living week to week, like a dog intent only on its next meal, it has allowed itself to be turned around and dragged forwards by the tail.

Mrs May’s speech, however reasonable its content, has not changed the situation. It came just days after the EU published a legal text that went even further than the major concessions given by Britain in December. This text states that, in the absence of some other arrangement, Britain must agree that Northern Ireland will not only become subject to the full gamut of EU rules and regulations, but will cease to operate under the authority of British regulators, who will only be invited to partake in decisions on the territory if and when the EU deems it appropriate.

The Government, of course, failed to see this coming. Before it came out, a minister had told me confidently that I was entirely wrong to think that the December agreement would be a problem, because it’s not as if “one side just goes away and turns this into a legally binding treaty”. The EU certainly would not be “dictating” to us, the minister said. Another senior government source had described the December fallback agreement for Northern Ireland as applying, in a worst-case scenario, only to “a subset of a subset of a subset” of EU rules. This was the line fed to Eurosceptic MPS to keep them happy. In the weeks that followed those conversations, however, the UK seems to have done precisely nothing to ensure that its interpretation of events won the day. Indeed, if the legal text released last week was meant to be a “joint” EU-UK effort, Britain’s contribution was, shall we say, subtle.

Supporters of the Government’s position like to remind us that “nothing is agreed until everything is agreed”. Unless the EU reverses its Irish overreach, they suggest, the UK will take its billions in cash off the table and chuck in the whole withdrawal agreement. The trouble is that Britain’s preparations for this are totally inadequate – there is no new customs system ready to go, nor any regulatory bodies ready to take over EU functions. Britain’s only card is the prospect of a kamikaze rebellion by pro-brexit MPS. That is a bad position to be in.

Before we get anywhere near negotiating the details of Mrs May’s Mansion House blueprint, therefore, we will now have to sort out a compromise on Northern Ireland. The UK’S preferred option is clear: don’t bother to police local traffic, which accounts for 80 per cent of trade across the border, and monitor larger commercial movements using unobtrusive cameras and a registration regime. This pragmatic plan has failed to gain Irish support, however. That is not because it wouldn’t work – both Bertie Ahern, Ireland’s former Taoiseach, and Ray Bassett, formerly a senior Irish diplomat, have voiced support for a practical option even if it means “breaking a few EU rules”, as Mr Bassett put it. But it raises worries about smuggling and contravenes EU dogma. Dublin doesn’t fancy its chances fighting Brussels.

That leaves three options. The first is a model based on the Norway-swedish border. Most roads across it are not policed. All major commercial traffic, however, is obliged to cross at one of a dozen checkpoints, involving customs posts and officers. This has the advantage of leaving most locals unaffected, but would break UK and EU promises that “no infrastructure” will ever appear on the border. It runs the appalling risk of attracting targeted attacks from an extremist Irish nationalist minority. The risk may be low, but cannot be ruled out.

The second option amounts to a betrayal of Northern Ireland’s unionists. It follows the EU draft text in effectively ceding regulatory control of the territory. This needn’t necessarily apply to trade in services, as the EU currently proposes, but it would affect goods and is likely to lead to the introduction of customs checks down the Irish Sea. The upside of this option is that it would avoid the creation of any border infrastructure on the island of Ireland and is unlikely to bother most Britons who, if the cruel truth be told, couldn’t give a fig for Northern Ireland. The rather large downside is that it will affect by far the larger share of Northern Ireland’s trade, which is with the UK, and is a material and destabilising change to the UK constitutional order. In short, it’s liable to provoke a DUP walkout and the collapse of our Government.

That leaves the last option, and this is where the EU and Dublin are placing their hopes: keep Britain inside the customs union. In other words, sign away Britain’s entire trade policy for the sake of a territory comprising less than 3 per cent of our GDP and population. That Brussels believes this is possible owes as much to as it does to our Government’s failure to unite itself at home and communicate its message abroad as it does to Westminster’s impossible parliamentary arithmetic and the determined efforts of Remainers to make Brexit reversible.

The Government has at last made a start on defining what Brexit means. But before it’s even begun to take soundings on its plan, our negotiations are in deep trouble. Unless it can engineer a miraculous turnaround in EU thinking, it is going to have to betray someone – the unionists, the Brexiteers or all the people who live and work across Northern Ireland’s troubled border. It must not find itself making this difficult choice on the fly in order to get out of a bind at the end of a long week. In other words, business as usual won’t cut it.

follow Juliet Samuel on Twitter @Citysamuel; read More at telegraph.co.uk/ opinion