The Irish border continues to block progress in the Brexit negotiations

So the can has been kicked up the road again. Fudged in the political agreement last December and covered in a further layer of saccharine words in the latest agreed UK-EU text, the Irish border issue remains unresolved. In the novel colour-coding adopted by Michel Barnier and David Davis, the Irish questions remains a neutral and virginal white, against the green and yellow backgrounds of the agreed and half-agreed passages. Perhaps not too much should be read into that tricolour.

Jonathan Powell, one of the architects of the Good Friday Agreement during his term as Tony Blair’s chief of staff, explains today exactly why this is so dangerous. There is either a hard border or there is not. A “soft” international frontier without checks and controls requires necessarily a customs union and a single market arrangement. It cannot work otherwise. Even the near-frictionless “Smart Border 2.0” proposal outlined by officials at the European parliament acknowledges that some checks, if only automatic number plate recognition cameras, will be necessary even under the most permissive of regimes. These will not be in the spirit of the Good Friday Agreement, and will not be acceptable. The United Kingdom is reaching the odd position in which the only way it can “take back control” and honour its international commitments to peace in Ireland is to create a new economic border within the UK.

This is what having Northern Ireland remain in the EU customs union and single market would mean – the so-called “border down the Irish Sea”. It would also – less politically sensitive but economically far more significant – mean some system of controls, and thus delays, at the Channel ports and elsewhere. The idea of an internal border between Northern Ireland and the rest of the UK has been declared “unacceptable” by Theresa May. No British prime minister could possibly sign up to it, she has told the Commons on numerous occasions.

Very well: in which case, the question arises as to why this “backstop” arrangement stubbornly remains in the draft agreement, and will do so until and unless the combined brains of London, Stormont, Dublin and Brussels can find an alternative. In the entire period since the June 2016 referendum, this most intractable of issues has received huge attention. Despite all that no workable, practical mechanism has been discovered that will avoid the EU’s “backstop” – which is merely the legal expression of the political undertakings made by the British last December.

There is another reason why the “backstop” of a border within the UK has been allowed to stand in the draft treaty. It is partly a matter of logic, but also partly a matter of the bargaining power of the EU27. The alliance of logic and the EU27 puts British negotiators in a hopeless position. The kind of messy compromises and “creative ambiguity” often found in political declarations about Ireland cannot work in a hard, legally binding and precise document such as an international treaty between the EU and the UK.

Much the same force of political reality has pushed the British into a series of other accommodations. Thus, the UK will indeed remain in the EU customs union and single market until the end of the transition period. The UK will have the courtesy of some “good faith” and consultation as it traverses this no-man’s land, but no formal vote or veto. If not a vassal state, then the UK will for period become a dominion of the EU.

Similarly EU citizens may arrive, presumably in unlimited numbers, during the transition period just as they can today, and presumably qualify for the same “pathway to settlement” in the UK. That is not something that the hard-nosed Leavers on the Tory back benches will be entirely content with.

Nor will they like Mr Barnier’s tone on Gibraltar – more than a little disquieting. He seemed to go out of his way to stress that the Kingdom of Spain, uniquely granted a veto right on the future of Gibraltar, was backed by the entire EU27, apparently unconditionally. Mr Davis’s brisk expression of confidence in “constructive” discussion with his Spanish counterparts did not entirely convince.

Like Northern Ireland, Gibraltar is a product of British history that seems to be holding the British future, such as it is, back. If so, then such baggage may prove extremely useful. Some Conservative backbenchers, faced with a Brexit that will both reverse the Irish peace process and make British workers poorer, are concluding that Brexit “at any cost” is hardly worth it. This middle group of pragmatic Conservative opinion, lying between the wings of opinion personified in Anna Soubry and Jacob Rees-Mogg, will certainly grow in number and influence. George Freeman is one who has spoken out about the vast downsides of Brexit. In due course he and others must stand ready to assert Parliament’s right to decide and to take responsibility for the welfare of the people who elected them and to honour solemnly made international commitments – as binding as any referendum result.

What does seem to be emerging, however, is much more of an atmosphere of horse-trading than a take-it-or-leave-it offer from the EU. The EU’s draft negotiating guidelines for the next stage of talks were, in truth, largely an exercise in cherry-picking for the EU27. The UK still has “assets” in these talks, unbalanced as they are. In current circumstances, the EU27 want and need the British to participate in a common foreign, security and defence framework. They have an interest in the UK’s fishing waters, again alluded to in yesterday’s session. The western European states and Ireland still view the UK as an important market for exports. Nor does the EU desire to have an economic basket-case desperately parked on its northwestern shores.

These, and the obvious British interest in securing access to financial markets and in the service industries, provide some sort of basis for a trade agreement. It will never be as frictionless as the current agreement, and will make the UK poorer, but it is at least something. The Irish border, however, not for the first time overshadows British politics. It may yet prove an insuperable barrier to Brexit.