Arlene Foster may have inadvertently created the conditions for a ‘soft Brexit’. But she might also have created the conditions for her own downfall and given  Sinn Féin an opportunity to have their voice heard again.

If you had said to me a week ago that Arlene Foster and the Irish Government would put in place the framework for the UK’s soft Brexit, I’d have told you to feck off in no uncertain terms.  But here is where we find ourselves.

As per my last piece, I’m an Irishman trying to look at today’s deal from the viewpoint of the DUP.  Tommy Gorman, RTE’s Northern Irish Editor, referred to Ireland as the cockpit of Brexit after Westminster’s general election, and it looks like he has been proved right.

I am surprised that Foster backed down on Brexit.  But as Naomi O’Leary noted this morning, something stopped them from using the nuclear option. The clue to Foster’s reasoning might be found in paragraph 50 of the Joint EU and UK Negotiator’s report to the Council:

“In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

Here, Foster and the DUP get their wish – no sundering of the Union to satisfy regulatory arrangements on the Border.  This is in line with what Davis said earlier this week and what Ruth Davidson posited as a possible solution.  But why would the DUP ask for that?  Nigel Dodds of Westminster has not been short of talk preferring no deal to a bad deal. Yet, as Mick Fealty of Slugger O’Toole writes, the “DUP are committed to Brexit, and one that will deepen British sovereignty in Northern Ireland. But Arlene Foster’s own home constituency is commercially sensitive to any barriers”.

During the last couple of days, various journalists have noted a possible breach between the Westminster DUP and the Assembly DUP.  And it looks like this may have come to pass.  It is worth noting that when Foster read out her statement this morning (as reported on RTE News and highlighted by my ma when I was chatting the situation over with her), she made no reference to the rest of the party.  There was an awful lot of ‘I’, but very little ‘we’.

Foster is shrewd, so perhaps she prioritised maintaining the Union over no deal and a hard Brexit.  But the manner in which she has done so keeps her in control.  Consider who Theresa May had to run the revised agreement past – it wasn’t the likes of hard Brexiteers Iain Duncan Smith and Jacob Reese-Mogg. Furthermore, any future trade arrangements regarding the Border are to be done in agreement with the Northern Irish Executive and the Assembly.  Effectively, Foster has faced down the Tory Brexiteers because if they challenge her preference, they have an election on their hands.  As a result, Arlene didn’t feel the need to go nuclear.

So far, so DUP.  But George Peretz QC noted two things about the agreement in paragraphs 43  and 47. Paragraph 43 notes that the UK was committed to avoid a hard border, and Paragraph 47 reminds us that the UK was committed to maintaining existing North-South frameworks and relationships (This will be in part because such relationships are part of Strand Two of the Good Friday Agreement. Peretz notes that the wording is explicit, and that the North-South arrangement ‘depends on “a common EU legal and policy framework”’.  Any trade discussions in Phase 2 of the Brexit negotiations have a very tight framework to work within, underpinned by EU law.  And whilst that might please Foster’s constituents, those in the DUP and Unionist community who wanted a hard Brexit won’t be so happy.  To quote Ciaran McGonagle (a Northern Irish lawyer based in London), “Examples of any comprehensive trade deal that is founded on principles of “regulatory alignment,” plz?”.

Now we get to the nub of the problem and where Foster may have undone herself.  The Irish Government will be pleased to see the inclusion of the Assembly and the Northern Irish Executive in Paragraph 50.   The commitment to existing North-South arrangements means they still have leverage and skin in the game during Phase 2 negotiations. And the explicit reference to the Assembly means they may be able to start leaning on the UK government if a regulatory trade deal looks to contravene those north-south arrangements.  Because ultimately, that deal has to be run by the Assembly.

Lest we forget, that’s the Assembly which currently doesn’t exist.  The Assembly that Foster and the DUP would be quite happy with if it continued not to exist.  Because as I noted in my previous piece, that Assembly has no unionist majority.  And a significant proportion of that Assembly want to ask Arlene Foster some tough questions over her hand in the Renewable Heating Incentive scheme.  But if you require approval from said Assembly, the UK and Irish Government will have to shake up the comatose power-sharing talks and get it back up and running.

To summarise then. Arlene Foster and the Irish Government have negotiated a soft-Brexit framework for the United Kingdom.  Arlene Foster and the Irish Government may also have agreed to force Theresa May to get the Northern Irish Assembly up and running, finally giving Sinn Féin an opportunity to have their voice heard again.

Like I said. The great thing about Arlene is she helps both ways.