Another red line in Theresa May’s Brexit plan was blurred today as a further government policy paper on the negotiations was published.

This time the issue at stake was the one that will prove most significant to the legal landscape after the UK leaves the European Union: the role of the Court of Justice of the European Union.

The government has often spoken in vainglorious terms about putting an end to European judges making decisions about matters that concern the UK. While this may not have been such a priority for those who voted to leave compared to things like immigration and EU subsidies there was undoubtedly a lot made of the idea that Britain would ‘take back control’ during the referendum campaign.

In the political sphere this will be achieved by way of the Great Repeal Bill but the situation in the legal world is a lot less clear. On the one hand it makes sense that European legislation that is incorporated in the UK’s body of law will be adjudicated upon by British judges but when it comes to enforcing the final Brexit deal or the rights of EU citizens it has always been difficult to imagine a situation where the Court of Justice in Luxembourg would simply give up any say that it currently has.

This stumbling block is reflected in the government’s own paper on the subject where although it is stated that the Court of Justice will cease to have “direct jurisdiction” the implication is that this does not exclude an indirect role. This move has been roundly condemned by prominent Brexiteers such as Nigel Farage but in truth it offers the negotiating team on the British side a greater degree of flexibility that should allow discussions to go a little bit more smoothly than might have been expected before the publication was released.

Nail on the head. pic.twitter.com/jtOrvt9whu

— Nigel Farage (@Nigel_Farage) August 23, 2017

They are not, however, out of the woods yet. The precise role of the EU’s court needs to be agreed and in particular there is a stark disagreement over the rights of EU citizens living in the UK. The government believes that these individuals should be subject to British law but it is unlikely that the EU will want to leave its citizens out in the cold:

UKgov wants to keep "half an eye" on ECJ rulings. EP thinks ECJ must keep both eyes open to protect #citizensrights https://t.co/X210RScAFG

— Guy Verhofstadt (@GuyVerhofstadt) August 23, 2017

Overall the paper published today will be viewed by many as a significant comedown for the government but in truth it is a reflection of the legal reality we will need to live in as a former member of the European Union. While the precise details will still need to be worked out so that rights are protected and both UK and EU courts have an appropriate jurisdiction this at least offers a serious starting point.