The Northern Ireland provisions of the agreement signed on Friday morning between the European Commission and the UK sacrifice a degree of certainty about how the frictionless Border will be sustained for reassurances to the unionist community that they will not be treated apart from the rest of the UK.
Unless, that is, the UK achieves its objective in the trade talks of securing a free trade agreement with provisions based on a regulatory alignment “through the overall EU-UK relationship”.
In other words, as Brexit secretary David Davis suggested in the Commons, an overall trade deal between the EU and UK which would obviate the necessity for any customs posts on the two islands.
That is Dublin’s preferred outcome, as the Taoiseach made clear on Thursday: “our preferred option is a deep and comprehensive agreement between the EU and the UK in its entirety which will allow us to trade as we do now”.
Such an outcome would see the challenges faced by the huge Irish-UK east-west trade addressed.
But such an agreement - equivalent to the UK remaining in the single market/customs union - will be hugely difficult to achieve because the UK still insisting on its right to control free movement of people and sign its own third party trade deals.
If it proves impossible to secure such a comprehensive deal then the UK promises it will maintain a regulatory alignment between North and South in areas crucial to preserving North South co-operation and linked to the Good Friday agreement.
Unique measures
If such unique measures for Northern Ireland are deemed necessary "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 [Belfast] Agreement, [and] the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland."
In other words, the Northern political institutions, effectively the unionists, are to be given a veto on such arrangements. The purpose of the prioritisation of the Northern Ireland Border issue in the phase one talks on divorce, we were told repeatedly over the last few months by Irish officials, was to go beyond the expression of aspirations to a frictionless border, repeatedly made by Mrs May and made again yesterday, to concrete specific measures for assuring such.
In the agreement which the DUP successfully collapsed on Monday those concrete measures were clear - Britain would maintain regulatory alignment between the North and South.
But in the reworking of the document which was agreed on Friday, and which is "not a dilution" Michel Barnier insists, we are left with an aspirational statement which proposes solutions conditional on the outcome of the broader trade talks which will be starting now.
Or, if as likely those fail, of negotiations between London and Stormont on the range of island-of-Ireland regulatory measures that can be agreed. Stormont is unlikely to agree to any significant such measures which might imply the need for Irish Sea controls.
Has border issue been solved?
How sure can we be then that the border issue has been solved?
The Taoiseach yesterday insisted that “We have achieved all we set out to achieve in phase one of these negotiations.
"We have the assurances and guarantees we need from the United Kingdom and support for them from the European Union. " But are these really guarantees?
He had said that he was determined to see an agreement which “set the parameters” for phase two discussions - has that really been achieved?
It had been London’s long-running position that the Border issue could not be resolved in phase one talks because any solution depended on the final trade relationship agreed between the EU and UK.
That position has been reflected in this agreement.
In reality, of course, the phase one discussions on Ireland have achieved a great deal in terms of copper-fastening the achievements of the Belfast Agreement, North-South co-operation in 142 bodies and programmes, and the safeguarding of the Common Travel Area.
An agreement to continue discussing Irish-related issues in a separate talks strand during the phase two discussion will also help to put flesh on the work that is underway.
But the agreement on how a frictionless border will be maintained is something of a fudge.
