Sam McBride: DUP begins to sell an ambiguous accord

DUP leader Arlene Foster
DUP leader Arlene Foster

If the section of yesterday’s Brexit deal relating to the island of Ireland were to pass into legislation and therefore be justiciable, it would bring great wealth to lawyers.

Former secretary of state Theresa Villiers, herself a lawyer, accepted there was “inconsistency” in the text, even though she broadly supports it as a means to progressing the talks.

The 1,168 words on ‘Ireland and Northern Ireland’ are complex, at points seemingly contradictory and ambiguous.

That reflects the multiplicity of authors and their often opposing interests. The fact that everyone got something into the text allowed all sides to yesterday claim some sort of victory.

But, just three days after Nigel Dodds made clear the DUP’s concern at the ambiguity of what had been on the table on Monday on “regulatory alignment”, this text is riven with areas which for now represent all things to all people.

The DUP views this as a strategic win for the party, even if they are - as they would always be, given the party’s small, though crucial, role in the process - unsure or uneasy about aspects of what is said in the document.

Yesterday morning Arlene Foster sounded distinctly less enthusiastic about the deal than Mr Dodds, saying that “there are still matters we would have like to see clarified” and that “we ran out of time essentially”. On hearing that in one ear yesterday morning and the Irish Government proclaiming in the other ear that “we have achieved all of our goals”, some DUP supporters will have felt deep unease.

But throughout yesterday the DUP - which has scuppered or undermined its fair share of major agreements since Sunningdale in 1973 - warmed to the task of selling this deal.

As a party committed to Brexit and committed to maintaining the Union, the DUP has managed to keep the former moving forward without the sort of explicit threat to the latter which an Irish Sea border and all-Ireland harmonisation could have entailed.

From its unprecedented position to influence, the party is hopeful that it can shape the UK-wide Brexit deal in such a way that some of the most ambiguous paragraphs - in particular around regulatory alignment for Northern Ireland - are largely or entirely redundant.

It hopes that either a UK-wide trade deal with the EU or an agreement to ensure a soft border through the use of technology will mean that the issue of regulatory alignment does not even arise.

But if it does - or even if there is a significant chance of it arising, the provision of a role for Stormont in deciding on any regulatory divergence from the rest of the UK is significant.

Suddenly, returning to Stormont would become a far more compelling proposition - for the DUP, to block divergence from the UK and for Sinn Fein in order to instigate such a change. And that could also cause Sinn Fein - which could conceivably carry a majority of the Stormont chamber with it - to at least reconsider its long-standing support for the various veto mechanisms such as the petition of concern which it has long defended.

One of the most ambiguous aspects of yesterday’s agreement relates to the border itself – even though that is an area to which in one sense the text brings new clarity by defining in sweeping terms, what a ‘hard border’ entails, stating that it includes “any physical infrastructure or related checks and controls”.

That would seem to rule out any cameras or check points of any sort, without even a cursory acceptance of the need for security or checks for people smuggling at even a very relaxed national frontier.

That and other questions of ambiguity will ultimately hinge on who can interpret this text if it becomes law – and that is at least a risk for anyone staking their political reputation on it.