Brexit Deal: Four Battles Still To Come

Friday (8 December) marked temporary relief for Theresa May. Frantic negotiations resulted in a "progress report" on Brexit that chief EU negotiator, Michel Barnier, said went far enough to prompt an advancement to the next phase of talks.

May still has to get through the European Council summit of EU leaders next week before that's confirmed. But she has ended a week that began with dire warnings of failure in a good position.

Still, as the EU is fond of saying, "nothing is agreed until everything is agreed." That document, made up mostly of near-impenetrable politico-jargon, contains within it the fuel for significant trouble further down the road.

Here's four big issues waiting to erupt.

Shackles for global Britain?

Central to most Brexiters' vision is the idea that, freed from EU "red tape," Britain can stride out into the world and strike new trading arrangements with markets beyond the continent.

But, experts say, the agreements that have been made relating to the Irish border might scupper that.

The U.K. and the EU have agreed to avoid any future relationship which would require a "hard border" on the island of Ireland, defined as "any physical infrastructure or related checks and controls."

Irish Border Checkpoints
An Irish police officer removes a Garda checkpoint sign at the Armagh and County Louth border between Northern Ireland and Ireland, May 12, 2017 Clodagh Kilcoyne/Reuters

May has also committed to maintain the "constitutional and economic integrity of the United Kingdom."

This doesn't tell us for sure what the U.K.'s final relationship with the EU will involve, but it does narrow down the range of possibilities.

According to Samuel Lowe, a trade expert at the Open Political Economy Network, one possible outcome, which would be a serious blow to the Brexiters, is that the U.K. ends up in a customs union with the EU covering goods, and also is "de facto in the single market for goods."

That would allow for goods to zoom back and forth across the Irish border without any checks, just as they do today. But it would also stop the U.K. from negotiating with other nations on tariffs and standards for goods and agriculture. To name one high-profile example, it would mean we couldn't strike a U.S. trade deal that allowed Americans to sell us chlorinated chicken.

This would seriously hamper Britain's ability to strike trade deals in future.

More battles with the DUP

There is a possible way round the above arrangement, according to Lorand Bartels, senior counsel at Linklaters and a Reader in International Law at the University of Cambridge.

Bartels said that the terms agreed would allow for Northern Ireland to maintain the status quo with a customs union agreement with the EU.

Another part of the agreement, which promises "the same unfettered access for Northern Ireland's businesses to the whole of the United Kingdom internal market," could then allow for the province to export goods to Great Britain facing only minimal spot checks, rather than establishing a full border in the Irish Sea, he believes.

The question is whether this would be politically palatable, particularly for the DUP, who may see it as compromising the integrity of the United Kingdom. It would likely also require Northern Ireland to act as the EU's border, conducting rigorous checks on goods arriving from the U.K.

Further free movement

Many people voted Brexit because of their opposition to large-scale immigration, so since the referendum, stopping the free movement of people has been seen as a priority.

But a European Commission document spelling out the EU's interpretation of what has been agreed specifies that for any "transition period" after 2019 in which the U.K. prepares to leave the EU, free movement rules will still apply.

That could mean free movement up to anything from 2021 to 2024, or theoretically even further.

Meanwhile, in the same document, it says that the EU plans to try and persuade the U.K. to further loosen the rules around spouses of EU citizens coming to Britain to join them, a move that will be sure to raise complaints from right-wing Brexiters.

Red turning pink

The government has long held that leaving the jurisdiction of the European Court of Justice is a "red line:" a defining feature of the complete break with Europe that Britain wants to mount.

But contained in Friday's update on talks is a continued role for the court for eight years after Brexit. British courts making decisions on the rights of EU citizens will be able to ask it for its interpretation on questions of EU law.

Even more "strikingly," said Catherine Barnard, a fellow at U.K. In A Changing Europe, "for the first time, the European Commission will have the right to intervene in citizens' rights cases before U.K. courts."

"The U.K.'s red line over the Court of Justice has turned pink," Barnard said. "In the field of citizens' rights, the Luxembourg Court is here to stay for eight years after the "specified date," the date of the U.K.'s withdrawal."