Could Boris Johnson strike a Brexit deal after all?

The Prime Minister could strike a deal that he could spin as different to May's – but the DUP and Labour's rebels might not want to play along. 

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Does Boris Johnson have a Plan B after all? The Telegraph's Gordon Rayner reports that the Prime Minister is contemplating a regulatory border in the Irish Sea after his warmer words on the need to maintain Northern Ireland and Ireland's shared sanitary and phytosanitary measures (i.e., shared rules for safe food and farming, in layman's terms). 

The one constant in the Brexit process is this: if you want to maintain the status quo on the border between Ireland and Northern Ireland, the creation of which has underpinned the policy of successive governments for more than 30 years, then you have two options: a customs and regulatory border in the Irish Sea, or for the whole of the United Kingdom to remain within the customs and regulatory orbit of the European Union. Even if you don't, then the bad news for you is that the Irish government, who ultimately have a veto on any EU-UK deal, do. 

The EU's first preference was a regulatory border in the Irish Sea, but Theresa May managed to make the case that the backstop – which, viewed from the EU's perspective, allows a huge degree of access into the EU's markets without a significant financial contribution and a large amount of regulatory freedom, particularly in emerging technologies and industries; an uncomfortable baseline for future talks – was the only way that the deal could pass Parliament. 

So there is a landing zone for a government that wants to remove the backstop – to end up with something that looks an awful lot like the backstop. There are three questions: is there something that a) exists in the real world?; that is b) a political victory for both sides domestically; and c) can pass this Parliament? 

The answer on a) is just about, yes. You can see how the government signs up to a thicker regulatory border with checks in the Irish Sea that furiously spins that the agricultural checks at ports are the shared SPS regime while the checks for goods in the Irish Sea are just the continuation of the “trusted trader” and “alternative arrangements” that they insist are going to solve the border question any decade now. But b) is a lot trickier.

What about c)? There remains a theoretical majority in this parliament for the withdrawal agreement. But the government has two problems: the opposition of the DUP and the reticence of Labour's pro-Brexit minority to actually vote for Brexit.

On the DUP side, Conservative MPs who want a deal are drawing a lot of comfort from the idea that something can be done, thanks to the DUP's worsening poll position. One MP referenced the St Andrews Agreement, an accord negotiated by the Labour government of Tony Blair that allowed the resumption of the Good Friday Agreement's institutions while allowing the DUP to continue the theoretical opposition to the original accord. Their hope is that something similar can be done with an NI-only backstop. It's something of a reach but it's not impossible.

What about the Labour problem? The difficulty is the reluctance of Labour MPs who want the withdrawal agreement to pass to incur the political price for voting for it. What’s more, of the handful of Labour MPs who actually want the deal to pass, some of the MPs who have already voted for a deal are opposed to a Northern Ireland-only backstop. Three Labour MPs, including one who voted for May’s deal, have deep concerns about the implications of an NI-only backstop.

There is an argument that the government has never successfully prosecuted: that the backstop is a diplomatic achievement and a good baseline going into free trade talks. But that is something sincerely believed by a good number of Labour MPs.

Even the group of Labour MPs for a deal, while talking the talk of wanting to vote for the withdrawal agreement, wanted to add a further package of labour market measures, making the deal still yet more unpalatable for Conservative MPs.

It’s possible that this group might finally decide that if they want Brexit, they need to vote for it, but it is not certain.

But the significant difference is that the mood music around a December election in which an accord, albeit one that looks essentially identical to the withdrawal agreement, has been reached and rejected is wildly different for Johnson than one in which his short premiership is distinguished only by failure.

Stephen Bush is political editor of the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.