Michael Dougan : So Long, Farewell, Auf Wiedersehen, Goodbye: The UK's Withdrawal Package

Paper submitted to Common Market Law Review for peer review (March 2020).
Subject to further revision and correction in due course.
So Long, Farewell, Auf Wiedersehen, Goodbye: The UK’s Withdrawal Package
Michael Dougan*
1. Introduction
Or should that be “good luck”?

The United Kingdom left the European Union at 00.00 CET on 31 January 2020.1
This article provides a critical analysis of the Withdrawal Package concluded by the
Union and the UK in order to facilitate an orderly departure (Withdrawal Agreement) and
outline the nature of their future relationship (Political Declaration).2
We will not revisit, but simply take for granted that readers are familiar with,
many of the broader factors and debates that led to this outcome: for example, the gaping
chasm between the political reality of the UK as a leading Member State and the distorted
portrayal / perception of Union membership among large parts of the British media /
public opinion; the cynical origins of the 2016 referendum as a tool of internal
Conservative Party management and Europhobic electoral posturing; a referendum
campaign in which the lacklustre and frequently incompetent Remain effort was far
surpassed by the systematic and shameless dishonesty of the Leave movement; extensive
academic as well as journalistic and political efforts both to explain the factors behind,
and interpret the significance of, Leave’s 52%-48% victory; the intense scholarly
investigation which suddenly erupted into the legal framework for withdrawal as
provided for under Article 50 TEU; and not least, the wearisome experience of the EU-
UK negotiations together with the equally protracted (though at least entertainingly tragi-
comedic-dramatic) process of British parliamentary approval.
That said, Section 2 will summarise the essential legal and political factors that
decisively shaped the nature and contents of the final Withdrawal Package – particularly
when it came to the crucial question of defining the proper scope, sequence and timing of
negotiations under Article 50 TEU. Section 3 will then provide a critical overview of the
Withdrawal Agreement on the UK’s orderly departure from the Union – focusing on key
issues such as governance arrangements, the transition period, citizens’ rights and the
Irish border. In Section 4, we will discuss the prospects for future EU-UK relations as set
out in the Political Declaration and further developed in each party’s post-withdrawal
negotiating positions. Section 5 offers some brief concluding observations.
2. Legal and Political Context of the Withdrawal Package
The principal aim of Article 50 TEU is not to grant Member States a right to withdraw
from the Union: that prerogative was widely assumed to exist well before and regardless

* University of Liverpool.
1
As well as Euratom: see Article 1 Withdrawal Agreement (hereafter: WA).
2
OJ 2019 C 384 I.
Electronic copy available at: https://ssrn.com/abstract=3553407

of the Lisbon Treaty reforms.3 Rather, Article 50 TEU is intended to facilitate a Member
State’s orderly withdrawal from the Union on the basis of a negotiated settlement and, to
that end, lays down the bare bones of the legal process required to achieve such an
outcome.4
Of course: the very act of withdrawal will, in any event, require certain unilateral
measures by the relevant State, the Union institutions and the remaining Member States,
so as to prepare their respective internal legal orders for those consequences which are
inherent in or inevitable from departure. For example: as regards the Union, the
Commission undertook a screening exercise which resulted in amendments to various
Union regulatory regimes so as to reflect the fact of UK departure – but otherwise
assumed that references to the UK in primary and all remaining secondary Union law
could effectively be treated as defunct pending their formal amendment or repeal in due
course.5 For its part, the task facing the UK was significantly more daunting: given the
high degree to which Union law is integrated into the legal system of every Member
State, the UK had to implement a scheme that would protect basic standards of legal
continuity, certainty and efficacy by retaining and adapting all existing provisions of
Union law;6 at the same time as designing entirely new regimes in fields (such as trade,
customs, agriculture, fisheries and immigration) where the replication of Union rules
(even with extensive changes) would be insufficient to plug the regulatory gap directly
resulting from withdrawal.7 And all that is just the basic prelude to the longer term
processes of constitutional change unleashed by Brexit: de-Europeanisation of the UK
legal system;8 and the future institutional and legal evolution of the Union itself now free
(for better and for worse) from British influence.9
And of course: Union law allows for outcomes other than a negotiated withdrawal
under Article 50 TEU. For example: it remained a substantial possibility, throughout the
entire period after June 2016, that the UK might leave without any agreement – forcing
the Union, as well as the UK itself, to undertake contingency plans aimed at reducing the
adverse impacts of such a “no deal Brexit”.10 Or again: there was a lingering (albeit only

3
See further, e.g. A Dashwood, M Dougan, A Johnson, E Spaventa and C Hillion, “Draft Constitutional
Treaty of the European Union and Related Documents” (2003) 28 ELRev 3; A Lazowski, “Withdrawal
from the European Union and Alternatives to Membership” (2012) 37 ELRev 523.
4
See further, e.g. P Eeckhout and E Frantziou, “Brexit and Article 50 TEU: A Constitutionalist Reading”
(2017) 54 CMLRev 695; C Hillion, “Withdrawal under Article 50 TEU: An integration-friendly process”
(2018) 55 CMLRev Special Issue 29.
5
In particular: COM(2018) 556 Final/2; COM(2018) 880 Final; COM(2018) 890 Final; COM(2019) 195
Final; COM(2019) 276 Final; COM(2019) 394 Final.
6
European Union (Withdrawal) Act 2018 as amended by European Union (Withdrawal Agreement) Act
2020.
7
Consider the list of “Brexit Bills” outlined in the Government’s legislative agenda (Queens’ Speech) of 21
June 2017.
8
See Editor’s Introduction in M Dougan (ed), The UK After Brexit: Legal and Policy Challenges
(Intersentia Publishing, Cambridge, 2017).
9
Including under the process envisaged by the Conference on the Future of Europe: see European Council,
Conclusions of 12 December 2019, paras 14-16.
10
For the Union: COM(2018) 556 Final/2; COM(2018) 880 Final; COM(2018) 890 Final; COM(2019) 195
Final; COM(2019) 276 Final; COM(2019) 394 Final. For the UK: HMG, UK Government’s preparations
for a “no deal” scenario (first published 23 August 2018 and updated several times thereafter); but
especially the “Operation Yellowhammer” report that Parliament forced a reluctant Government to publish
on 11 September 2019.

ever slim) chance that the UK might change its mind and exercise its right (as confirmed
by the CJEU in Wightman) to revoke its original notification of intention to withdraw and
simply remain a Member State under its current constitutional terms.11 But each of those
alternative outcomes was effectively ruled out following the Conservative Party victory
in the UK’s general election of December 2019: there would indeed be a deal; though
there would be no second referendum to verify whether withdrawal on those terms still
reflected the will of the UK population.
And so, in the end, Article 50 TEU fulfilled its purpose of producing an orderly
withdrawal based on a negotiated settlement. To some extent, the final Withdrawal
Package is the natural product of logical deduction and responsible management:
conscientious civil servants identifying relevant issues and working out appropriate
solutions informed by insight and experience. However, the Withdrawal Package is also
the direct spawn of various legal and political factors, affecting both the EU and the UK,
which together had a decisive impact upon the very agenda of the Article 50 TEU
negotiations as well as the more detailed contents of the parties’ ultimate agreement.
2.1. The EU’s negotiating position under Article 50 TEU
2.1.1. Institutional roles and responsibilities
The UK delivered its formal notification of intention to withdraw on 29 March 2017.12 In

accordance with Article 50 TEU, the European Council then drew up initial guidelines
for handling the UK’s intended withdrawal. 13 On the basis of a Commission
recommendation, 14 the Council opened negotiations and appointed the Union
negotiator.15 Formal talks with the UK commenced on 19 June 2017 (after another delay
created by its Government’s decision to call an early general election in May 2017).16
The Council and the Commission maintained a close working relationship throughout the
process: for example, an ad hoc Working Party on Article 50 TEU held regular
meetings; 17 additional negotiating directives were proposed and adopted as the

11
Case C-621/18, Wightman, C:2018:999. See further, e.g. A Cuyvers, “Brexit and the sovereign right to
remain: Wightman” (2019) 56 CMLRev 1303.
12
Prime Minister’s notification letter to President of the European Council (29 March 2017). The delay is
explained not only by the fact that the Government needed more time to make basic policy preparations for
the consequences of its own referendum; but also by the litigation which resulted in the Supreme Court’s
confirmation that the decision to notify must be directly sanctioned by Parliament itself: see Miller v
Secretary of State for Exiting the European Union [2017] UKSC 5; and European Union (Notification of
Withdrawal) Act 2017. Note other attempts to challenge the legality of the UK referendum / notification,
e.g. Shindler [2016] EWHC 957 (Admin); Webster (High Court Judgment of 12 June 2018); Case T-
458/17, Shindler, T:2018:838.
13
European Council (Art 50), Guidelines following the United Kingdom’s notification under Article 50
TEU (29 April 2016).
14
COM(2017) 218 Final.
15
Council Decision authorising the opening of negotiations with the United Kingdom of Great Britain and
Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union
(22 May 2017).
16
See Terms of Reference for the Article 50 TEU negotiations (19 June 2017).
17
See Council Decision 2017/900, OJ 2017 L 138/138.

discussions proceeded. 18 Ultimately, Article 50 TEU provides that any withdrawal

agreement must be concluded by the Council (acting by super-QMV) after obtaining the
consent of the European Parliament.19 There is no express provision for the approval of
any political declaration: it was simply assumed that that would be granted directly by the
European Council and indirectly by the other institutions (for example, by the European
Parliament when endorsing the withdrawal treaty, containing explicit reference to the
political declaration).
Beyond the basic institutional responsibilities laid down in Article 50 TEU itself,
several features of the Union’s approach to withdrawal, perhaps not so immediately
obvious from the bare text of the Treaties, nevertheless proved central to the conduct and
outcome of the EU-UK negotiations.20
First, the role and influence of the European Council were far from exhausted by
adoption of the initial guidelines foreseen under Article 50 TEU. The European Council
remained permanently seised of the Article 50 TEU situation: for example, reviewing the
state of play at regular points in the negotiations;21 deciding whether sufficient progress
had been achieved as to justify broadening or deepening the agenda;22 adopting additional
guidelines to determine the scope and conduct of the withdrawal discussions;23 and
granting political approval to the proposed withdrawal package as a whole and in prelude
to initiating the formal procedure for approval of the withdrawal agreement under Union
law.24 Needless to say, that continuing oversight of a major event in the Union’s
constitutional life falls squarely within the European Council’s mandate to provide the
Union with the necessary impetus for its development and define its general political
directions and priorities.25
Secondly, not only the European Council but also the European Parliament made
an important contribution to the conduct of negotiations with the UK under the Article 50
TEU process. Indeed, the European Parliament made it clear almost from the very
moment of the 2016 referendum result that it wished to use the requirement for its
eventual consent to any agreement as leverage to play an active and influential role in
shaping the terms of UK withdrawal. 26 By those means, the European Parliament
undoubtedly exercised significant influence over the formulation of Union positions, not
only by the Commission, but also by the European Council (in adopting its periodic
assessments and guidelines) and the Council (in settling the detailed negotiating

18
E.g. COM(2017) 830 Final and Council Decision supplementing the Council Decision of 22 May 2017
authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for
an agreement setting out the arrangements for its withdrawal from the European Union (29 January 2018).
19
For those purposes: Article 50 TEU provides that the relevant State is excluded from the calculation of
voting thresholds in the Council; but its MEPs are still entitled to vote on the proposed withdrawal
agreement in the European Parliament.
20
Note that only limited opportunities for input were afforded to other interested parties such as the EFTA-
EEA states. See further, e.g. C Hillion, “Brexit means Br(EEA)xit: The UK Withdrawal from the EU and
its Implications for the EEA” (2018) 55 CMLRev 135.
21
E.g. European Council (Art 50) meetings of 20 October 2017, 29 June 2018 and 17 October 2018.
22
E.g. European Council (Art 50) meeting of 15 December 2017.
23
E.g. European Council (Art 50) meetings of 15 December 2017 and 23 March 2018.
24
E.g. European Council (Art 50) meetings of 25 November 2018 and 17 October 2019.
25
Article 15(1) TEU.
26
E.g. European Parliament, Resolution on the decision to leave the EU resulting from the UK referendum
(28 June 2016).

directives and liaising with the Commission through the ad hoc Working Party).27
Thirdly, the withdrawal negotiations quickly identified certain issues which were
to be considered of major concern to specific Member States. The prime example is the
extraordinary economic and political impact of the UK’s departure on Ireland; but
important issues were also raised by Cyprus as regards the future of the UK’s Sovereign
Base Areas in that Member State; and by Spain when it came to the treatment of Gibraltar
in the context of UK withdrawal. The Union institutions sought to respect the importance
and sensitivity of those special national interests when making political judgments about
the overall progress and outcomes of the withdrawal negotiations.28 Even if no Member
State held a formal veto over conclusion of the withdrawal agreement as a matter of
Union law, it is arguable that the Union in practice acted only with the consent of certain
Member States, at least on certain issues – and in the case of Ireland, even for the
agreement as a whole.
Fourthly, however, the Union did not go so far as to contemplate any possibility
of the Withdrawal Agreement being treated as a mixed agreement and as such open for
the Member States to insist upon the need for ratification by their national institutions as
well by the Union itself – and this was so, even despite the fact that certain provisions of
the draft treaty (such as those concerning the future treatment of migrant UK citizens
within the EU27) clearly intruded upon issues of national competence. In particular, the
Council explicitly endorsed the Commission’s proposed understanding that Article 50
TEU gives the Union an exceptional horizontal power to negotiate all matters necessary
to arrange for withdrawal – exceptional at least to the extent that it empowers the Union
alone to reach agreement with the UK, on behalf of the remaining Member States, even
as regards issues which would normally be seen as falling within shared competence.29
But the Council also stressed that this exceptional power should be considered one-off in
nature and strictly for the purposes of arranging withdrawal; it would not affect in any
way the distribution of competences between the Union and the Member States as
regards future instruments in the areas concerned.30
2.1.2. The European Council’s “core principles”
The initial guidelines adopted by the European Council in April 2019 assumed a position
of central importance in the entire withdrawal process, insofar as they identified a series
of “core principles” which would be treated as applicable to any and all negotiations
conducted under the auspices of Article 50 TEU.31

27
In particular: European Parliament, Resolution on negotiations with the UK following its notification that
it intends to withdraw from the European Union (5 April 2017); plus subsequent resolutions of 3 October
2017, 13 December 2017, 14 March 2018 and 18 September 2019.
28
For example, in the case of Ireland: the Commission maintained a regular dialogue with the national
government; while the President of the European Council held bilateral meetings with the Irish Prime
Minister at key points in the Article 50 TEU process.
29
COM(2017) 218 Final.
30
Council Decision of 22 May 2017.
31
European Council (Art 50), Guidelines following the United Kingdom’s notification under Article 50
TEU (29 April 2016). The key themes were already evident from European Council, Statement from
Informal Meeting at 27 (29 June 2016).

Many of those “core principles” were primarily legal in character: the European
Council sought to recall certain basic rules that should underpin the Article 50 TEU
process, often derived / adapted from the existing caselaw of the Court of Justice. For
example: the Union must preserve its own autonomy as regards both decision-making
and the role of the CJEU – an obvious reference to the constitutional principles developed
by the Court in its caselaw and designed to protect the Union legal order from external
interference.32 Or again: there should be no separate negotiations by individual Member
States on matters pertaining to the UK’s withdrawal – this time implicitly referencing the
special obligations of loyal cooperation previously identified by the Court in situations
where the Commission submits proposals for concerted action by the Union institutions.33
A final illustration: the European Council also sought to adapt the general duty of sincere
cooperation under Article 4(3) TEU to the unprecedented situation of withdrawal, based
on a general principle of “business as usual”, but subject to various adaptations (for
example) as regards institutional discussions and decision-making – an approach again
(only this time later) endorsed by the CJEU in rulings such as R O and Wightman.34
Other “core principles” identified by the European Council were more political in
nature. In particular, the April 2017 Guidelines contain the seeds of the Union’s four key
negotiating objectives, in a clear order of priority. First, the Union attached overriding
importance to preserving its own unity within and between the Union institutions and the
27 remaining Member States. Brexit cannot endanger the solidarity or indeed the
survival of the Union as a whole. Every competent actor should therefore present a
common front in the Article 50 TEU process – going above and beyond whatever formal
institutional roles might be prescribed under the Treaties and surpassing whatever basic
legal requirements might derive from the duty of sincere cooperation. Thus (for
example) the European Council proclaimed that the Union should approach the
negotiations with unified positions and engage with the UK exclusively through the
channels provided for under Article 50 TEU.35
Secondly and of equal importance, the Union must protect the cohesion and
legitimacy of the EU legal order as a whole. The UK simply cannot be allowed to enjoy
better treatment by leaving the Union than it enjoyed as a (particularly privileged)
Member State or indeed as compared to the situation of the remaining Member States.
Such concessions could call into question the very principle of Union membership based
on the reciprocity of a particularly far-reaching network of rights and obligations. It
would also risk destabilising the Union’s existing and settled relations with a much wider
range of third countries. Thus (for example): the European Council recalls that no third
country can enjoy the same rights and benefits as a Member State; any agreement with
the UK must be based on a balance of rights and obligations, ensure a level playing field
and preserve the integrity of the Single Market.36 Again, those political imperatives

32
E.g. Opinion 1/91, EEA Agreement, C:1991:490; Opinion 1/92, EEA Agreement II, C:1992:189; Opinion
1/00, European Common Aviation Area, C:2002:231; Opinion 1/09, European and Community Patents
Court, C:2011:123; Opinion 1/17, CETA, C:2019:341.
33
E.g. Case C-266/03 Commission v Luxembourg C:2005:341; Case C-433/03 Commission v Germany
C:2005:462.
34
Case C-327/18, RO, C:2018:733; Case C-621/18, Wightman, C:2018:999.
35
Para 2.
36
Para 1.

arguably go beyond the strict legal or technical limits inherent in constitutional principles
such as those protecting the autonomy of Union law.37
The Union’s remaining negotiating objectives were to be pursued entirely subject
to those two overriding political aims. Thirdly, the Union would seek to deliver the UK’s
withdrawal in a smooth and orderly (rather than chaotic and damaging) manner – as far
as possible, preserving legal certainty and minimising disruption for public authorities,
private businesses and individual citizens. Thus (for example) the April 2017 Guidelines
provide that the Article 50 TEU negotiations will be carefully phased so as to prioritise
reaching an agreement that addresses the immediate challenges posed by the very fact of
UK withdrawal.38 Fourthly and finally: the Union’s longer term objective is to reach a
future relationship with the UK that will succeed (if at all possible) in keeping its
erstwhile Member State still firmly within the Union’s own legal orbit and sphere of
influence. Thus (for example) the April 2017 Guidelines insist that, once formal
negotiations over a new EU-UK relationship commence, the Union’s clear desire is to
have the UK as a close partner into the future.39
Those four political objectives effectively governed the Union’s entire subsequent
interpretation and application of Article 50 TEU as a legal basis for managing the process
and outcomes of UK withdrawal. The Union was always going to be the dominant party
in the negotiations. But perhaps to the surprise of many commentators, the EU’s natural
position of strength was considerably reinforced and amplified by the determination and
success of both the Union institutions and the remaining Member States in defending and
promoting their fundamental political interests as expressed in the April 2017 Guidelines.
2.2. Legal and political factors affecting the UK
2.2.1. An unorthodox allocation of institutional responsibilities
Although the Supreme Court in Miller insisted that the UK’s initial notification of
intention to withdraw must be directly authorised by Parliament, 40 one would then
normally expect that the subsequent negotiation, conclusion and ratification of any
international agreement falls within the prerogatives of the central UK government.41
UK law generally provides that Parliament plays only a limited role in the pre-ratification
scrutiny of proposed treaties; 42 its main responsibility lies in the post-ratification
implementation of the UK’s international commitments into domestic law.43

37
See further, on the integrity of the Single Market / indivisibility of the four freedoms as political and
legal phenomena, e.g. Editorial Comments, “Is the ‘indivisibility’ of the four freedoms a principle of EU
law?” (2019) 56 CMLRev 1189.
38
Paras 4-5.
39
Paras 1 and 18.
40
[2017] UKSC 5.
41
See further, e.g. House of Commons Library, Parliament’s Role in Ratifying Treaties (Briefing Paper No
5855, 17 February 2017).
42
In accordance with sections 20-25 Constitutional Reform and Governance Act 2010.
43
Note that the devolved administrations have no formal role in the negotiation and conclusion of
international agreements by the central UK authorities; but they may well be closely involved in /
responsible for their subsequent domestic implementation.

However, at an early stage in the withdrawal process, even the UK Government

recognised that this exceptional situation called for a different approach – promising
(albeit obscurely) that any draft withdrawal deal would be presented to Parliament for
approval before its formal conclusion.44 After the loss of its parliamentary majority in
the June 2017 general election, the UK Government was forced into further concessions,
which were eventually enshrined in section 13 of the European Union (Withdrawal) Act
2018: any proposed Withdrawal Package (formal agreement and political declaration)
must be approved by the House of Commons; even then, Parliament must adopt the
necessary implementing legislation, as well as conduct its normal treaty scrutiny
functions, before the Government may proceed to final ratification of the Withdrawal
Agreement.45 The section 13 process decisively changed the institutional dynamic of the
UK’s engagement in the Article 50 TEU process – though it is worth noting that
Parliament also sought to influence the conduct of the withdrawal negotiations through
additional means: for example, by issuing various statutory instructions about how the
Government should approach discussions over the Northern Irish border.46
2.2.2. An unusual degree of political instability and incoherence
Managing the Article 50 TEU process may well have prompted the UK into some
unorthodox constitutional experiments. But above all else, Brexit obliterated the UK’s
(not only self-proclaimed) reputation for stable, competent and responsible government.
The political chaos which immediately followed the June 2016 referendum revealed the
full extent of the Government’s lack of preparation or planning for a Leave victory. For
their part, the leading advocates of withdrawal had failed to offer any credible and
coherent vision for the future, preferring to flood the public domain with a torrent of
vague, contradictory and undeliverable promises. When the Government eventually did
begin to define its position, albeit without any serious parliamentary or public discussion,
it insisted that withdrawal should lead to a much more distant EU-UK relationship –
“taking back control of our money, laws and borders”, to use the phrase which came to
define just how “Brexit means Brexit” – which involved leaving not just the Union but
also membership of the Customs Union and the Single Market.47
Once again, however, the June 2017 general election proved a decisive moment.
Rather than admit that the public had recoiled from the Government’s hardline
interpretation of the referendum result, and seek to engage in cross-party dialogue with a
view to building some meaningful consensus on an alternative way forward, Prime
Minister May instead preferred to focus her efforts on maintaining the fragile coalition
between moderates and extremists within her own Conservative Party – forming a
minority administration that was, moreover, only propped up in power through the

44
See HMG, The United Kingdom’s exit from and new partnership with the European Union (Cm 9417, 2
February 2017) paras 1.11-1.12.
45
Compare with the Government’s original proposed version of the legislation: Department for Exiting the
European Union, Legislating for the United Kingdom’s withdrawal from the European Union (Cm 9446, 7
March 2017); European Union (Withdrawal) Bill 2017 as published on 13 July 2017.
46
Consider, e.g. section 10 European Union (Withdrawal) Act 2018; sections 54-55 Taxation (Cross
Border Trade) Act 2018.
47
See, in particular, Theresa May, Lancaster House Speech: The Government’s Negotiating Objectives for
Exiting the EU (17 January 2017).

support of the Democratic Unionist Party – a hard right, pro-leave, essentially sectarian
(protestant) and certainly partisan (loyalist) party from Northern Ireland.48
The consequences of all those political shenanigans were predictable. The UK’s
official policy towards negotiations under Article 50 TEU was (as the now wearisome
colloquial phrase goes) to have its cake and eat it.49 On the one hand, the UK wishes to
enjoy a deep and special partnership with the EU, which would in practice amount to
preserving many of the same benefits as its former membership in the fields of economic
and security cooperation. On the other hand, the UK insists upon various red lines
around issues such as the free movement of persons and the jurisdiction of the CJEU –
indeed, thanks to the DUP, new red lines are introduced, concerning also the Northern
Irish border – all of which place inherent limits upon the scope for / nature of any
negotiated agreement / future relationship between the Union and the UK. Yet to keep its
powerbase intact, the Government must avoid either confessing that that policy was
unsustainable, admitting the true nature of the challenge or explaining the compromises
required. For as long as it could, the Government delayed making serious and honest
decisions on even the most basic issues. But such tactics could not be sustained
indefinitely. When reality finally arrived, the combination of (first) a mutually
incompatible governing coalition, (secondly) a jilted and hostile opposition and (thirdly)
the need nevertheless to secure positive parliamentary approval for the outcome of
negotiations, virtually guaranteed a political implosion.
In comparison to the Union, the UK was always going to occupy a weaker
position in the Article 50 TEU process. But the UK’s natural disadvantage was
considerably reinforced and amplified by the abject disunity of its political class, the self-
inflicted fragility of its governing administration and the blatant contradiction of its
official negotiating objectives.
2.3. Negotiating with Theresa May and then with Boris Johnson
Putting together the legal and political factors affecting both the Union and the UK, it is
easy to understand the relative chaos that marked so much of the negotiations during the
Prime Ministerial tenancy of Theresa May.50 It took nearly a year from the referendum
for withdrawal talks to commence – including several months of formal negotiating time
lost thanks to the early UK general election.51 Nevertheless, the two parties hoped that a
withdrawal package could still be concluded and approved in time for the UK’s planned
departure on 31 March 2019. 52 However, several major stumbling blocks to any
agreement on an orderly withdrawal rapidly emerged, driven largely by the (mis-

48
See, in particular, Confidence and Supply Agreement between the Conservative and Unionist Party and
the Democratic Unionist Party (26 June 2017).
49
See, in particular, HMG, The United Kingdom’s exit from and new partnership with the European Union
(Cm 9417, 2 February 2017).
50
This Review provided regular analysis of the withdrawal process through its Editorial Comments: see,
e.g. (2016) 53 CMLRev 875; (2016) 53 CMLRev 1491; (2017) 54 CMLRev 1309; (2017) 54 CMLRev
1613; (2018) 55 CMLRev 1; (2019) 56 CMLRev 611; (2019) 56 CMLRev 1447. See also the (2018) 55
CMLRev Special Issue on Brexit (May 2018).
51
I.e. from 23 June 2016 to 19 June 2017 (including formal notification on 29 March 2017 and the general
election on 8 June 2017).
52
See European Council (Art 50), Guidelines of 29 April 2017, para 7.

)management of domestic UK political tensions: for example, disputes about the extent of
protection for existing migrant citizens’ rights; posturing about the methodology for
calculating the UK’s financial settlement towards the Union; arguments about political
governance, dispute settlement and legal interpretation of the withdrawal treaty; above
all, trying to untangle the knot created by the UK Government around the
Ireland/Northern Ireland border.53
Finding common ground on the terms for future EU-UK relations was no easier.
It took until July 2018 for the UK Government even to publish its “Chequers Plan”:54 a
series of senior ministerial resignations immediately revealed just how fractious and
unstable the UK administration really was; while the critical reaction of the European
Council, at the informal Salzburg summit in September 2018, demonstrated how little
attention the UK was paying to finding proposals that might prove acceptable to its actual
negotiating partners.55 All the while, even senior UK Government figures pandered to
their domestic supporters (for example) with threats to renege on the UK’s due financial
obligations under any withdrawal agreement, as a means to pressurise the EU into
offering improved future trading terms;56 and (above all) under the mantra that “no deal is
better than a bad deal”, despite the overwhelming evidence of how deeply damaging any
such outcome would be not only to the EU27 but especially for the UK itself.57
Even when a first Withdrawal Package was finally agreed between the UK
Government and the European Council in November 2018,58 that only heralded a new
period of chaos as Theresa May sought to steer her deal through the section 13
parliamentary approval process, just as her unhappy governing coalition finally began to
unravel. Perhaps underestimating how far “no deal” had morphed into the positively-
preferred outcome of many Tory MPs, the Prime Minister attributed opposition to the
proposed Withdrawal Package primarily to the compromises reached in order to avoid a
“hard border” across the island of Ireland.59 Over the succeeding months, the UK
Government sought additional political assurances from the Union about the full legal

53
See the statements delivered by the Commission and UK negotiators after their monthly talks,
particularly during the earlier stages of the negotiations (e.g. on 20 July 2017, 31 August 2017, 28
September 2017, 12 October 2017 and 10 November 2017); culminating in the Joint Report from the
negotiators of the European Union and the United Kingdom Government on progress during Phase 1 of
negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union
(8 December 2017).
54
HMG, The Future Relationship between the United Kingdom and the European Union (Cm 9593, 17
July 2018).
55
Informal Summit of the Heads of State or Government meeting in Salzburg (19-20 September 2018).
56
See, e.g. <<https://www.politico.eu/article/brexit-theresa-may-uk-to-eu-play-fair-or-we-wont-pay-our-
bill/amp/>>; <<https://www.politico.eu/article/raab-britain-to-refuse-paying-divorce-bill-without-trade-
deal/>>.
57
The phrase was famously used by Theresa May, Lancaster House Speech: The Government’s
Negotiating Objectives for Exiting the EU (17 January 2017) and repeated in the Conservative Party
Manifesto for the June 2017 general election. Then, e.g. by Theresa May, Brexit Negotiations Statement
(21 September 2019). By contrast, e.g. House of Commons Foreign Affairs Committee, Article 50
Negotiations: Implications of “No Deal” (HC1077, 12 March 2017); House of Lords European Union
Committee, Brexit: Deal or No Deal (HL46, 7 December 2017); House of Commons Committee on Exiting
the EU, The Consequences of No Deal for UK Business (HC2560, 19 July 2019).
58
See the final text as published in OJ 2019 C 66 I.
59
See, e.g. Theresa May, Statement on Exiting the European Union (10 December 2018); also, e.g.
Statement to the House of Commons (21 January 2019).
10

implications of the proposed Irish border arrangements.60 But those assurances did
nothing to prevent a series of humiliating parliamentary defeats;61 successive requests for
the European Council to defer the effective date of UK withdrawal; 62 and the
Conservative Party’s electoral embarrassment in the European elections held in May
2019.63
Theresa May’s replacement as Prime Minister by Boris Johnson in July 2019
brought about a decisive change in the UK’s political orientation. Proudly reprising his
role as Brexiter-in-Chief, Johnson promised to deliver an entirely new withdrawal
settlement (or at least an entirely new Irish border plan) with the EU.64 However, many
commentators assumed (primarily from the evidence of his own behaviour) that Johnson
was planning merely a sham renegotiation, to hide his true preference for a “no deal
Brexit” on the revised departure date of 31 October 2019.65 If that was indeed his plan,
then successful parliamentary efforts to rule out any such denouement effectively forced
Johnson into undertaking more serious talks with the EU.66 A final round of intense
negotiations produced the revised Withdrawal Package of October 2019, 67 which
contained two main (inter-related) changes as compared to the parties’ previous
arrangements: significant amendments to the border plans that would apply under the
Withdrawal Agreement to the island of Ireland (much to the horror of Johnson’s former
DUP allies);68 and various alterations to the Political Declaration that envisaged a more
distant future EU-UK relationship than even Theresa May had suggested (much to the
delight of his fellow Tory Ultras).69
If Johnson had still genuinely hoped to complete the section 13 parliamentary
process in time for the UK’s projected withdrawal on 31 October 2019, the House of
Commons again managed to defy him: voting to delay any further approval of the revised
Withdrawal Package; 70 and thereby directly forcing the Government to request yet
another extension to the UK’s “exit day” – this time until 31 January 2020.71 By this

60
See Section 3.4.3 (below). Note the May Government’s other attempts to win Commons support for its
Withdrawal Package of November 2018, e.g. promises of greater Parliamentary involvement in
negotiations over the future EU-UK relationship; commitments to uphold employment standards under UK
law; promises of investment in economically deprived towns (the so-called “cash-for-votes” fund
announced on 4 March 2019).
61
Including the infamous “section 13” defeat in the House of Commons on 15 January 2019 – reputedly the
worst government loss in Parliament in modern British history. See also the further Commons defeats on
12 and 29 March 2019.
62
See European Council Decision 2019/476, OJ 2019 LI 80/1 and Decision 2019/584, OJ 2019 L 101/1.
63
The Tories won less than 10% of the UK vote and took only 4 seats in the European Parliament.
64
See, e.g. Boris Johnson, First Speech as Prime Minster (24 July 2019); Statement on Priorities for the
Government (25 July 2019); Letter to Donald Tusk (19 August 2019).
65
Taking into account, e.g. that Government claims about making progress in EU-UK talks were publicly
contradicted by the Union; and that Johnson’s decision unlawfully to shut down Parliament (Miller v Prime
Minister [2019] UKSC 41) was generally attributed to his desire to prevent public scrutiny of his conduct
and ongoing Commons attempts to block a “no deal”.
66
See, in particular, European Union (Withdrawal) (No 2) Act 2019.
67
See the final text as published in OJ 2019 C 384 I.
68
Section 3.4 (below).
69
Section 4 (below).
70
On 19 October 2019.
71
In accordance with the terms of the European Union (Withdrawal) (No 2) Act 2019. That request was
granted by the European Council: see Decision 2019/1810, OJ 2019 LI 278/1.
11

stage, however, it was evident that Johnson stood a good chance of eventually succeeding
where May had repeatedly failed: even though his new approach to the Irish border had
cost him the support of the DUP, his more hardline stance on future EU-UK relations had
won him back the more extreme Tory rebels; and it seemed likely that sheer “Brexit
fatigue” would now persuade enough moderate Conservatives as well as several Labour
MPs also to support the Government under section 13. Yet rather than continue with the
search for parliamentary approval of his revised Withdrawal Package, Johnson instead
pressed for a different route: calling another UK general election. Despite having refused
to agree to that request several times already,72 the main UK opposition parties were
eventually persuaded to acquiesce – perhaps hoping that voters would swing against the
Conservatives altogether, or at least do so in sufficient numbers as to make a second
referendum on EU membership part of any future coalition talks.73
If that was their calculation, the opposition parties could not have been more
wrong. The Conservatives won 43.6% of the popular vote in December 2019, which
translated into an 80-seat majority in the House of Commons. Moreover, the Tories were
now a very different political movement from previous generations: entirely purged of
moderate pro-Europeans; significantly more right wing in orientation. For his part,
Johnson’s gamble had paid off handsomely: at this point, for the first time since June
2016, Brexit became inevitable. The UK Government published draft legislation which
would abolish the troublesome section 13 process altogether and instead simply provide
for domestic implementation of the Withdrawal Agreement in those situations where it
was positively required – as well as (for example) explicitly ruling out any extension to
the post-withdrawal, status quo transition period; and re-diluting Parliament’s promised
role in the forthcoming negotiations over future EU-UK relations.74 The European Union
(Withdrawal Agreement) Act 2020 was duly adopted by a now-compliant Parliament –
paving the way for formal signature of the Withdrawal Agreement by the UK
Government; 75 as well as the granting of consent by the European Parliament and
conclusion by the Council.76
2.4. Scope, sequencing and timing of the negotiations
Among the legal and political factors that shaped the conduct and outcome of the Article
50 TEU process, perhaps the single most important concerned the scope, sequencing and
timing of the UK’s withdrawal negotiations.
It was evident from soon after the 2016 referendum that UK withdrawal would
involve three distinct if inter-related sets of discussions. First, the separation issues
involved in ensuring that the very act of the UK’s withdrawal from the Union took place
in an orderly fashion: for example, citizens’ rights; the financial settlement; the Irish

72
In Commons votes on 4 September, 9 September and 28 October 2019. Note that the Fixed Term
Parliaments Act 2011 effectively gave opposition parties a veto over any government decision to call a
general election.
73
See Early Parliamentary General Election Act 2019.
74
See European Union (Withdrawal Agreement) Bill 2019 as published on 19 December 2019. Contrast
with the previous version as published on 21 October 2019.
75
On 24 January 2020. Note, in particular, sections 31-32 European Union (Withdrawal Agreement) Act
2020.
76
On 29 and 30 January 2020 (respectively).
12

border. Secondly, the terms of the future relationship between the Union and the UK
which should apply after withdrawal itself was completed: in fields such as trade, security
and research. Thirdly, there was the possibility of negotiating some form of transition
period to help smooth the way between the immediate priority of delivering an orderly
withdrawal and the eventual entry into force of the framework for future EU-UK
relations.
However, more serious differences in approach between the Union and UK
emerged concerning the precise sequencing and timing of those various sets of
discussions. On the one hand, the UK Government claimed in its White Paper from
February 2017 that there should be single (or at least parallel) negotiations covering both
the immediate separation issues and the future relationship, to be concluded and ratified
before the effective date of UK withdrawal, followed by a phased implementation of the
new arrangements – allowing public and private actors to prepare for the introduction of
new regulatory regimes which had already been agreed and were simply awaiting entry
into force. 77 That approach was consistently reflected in subsequent UK official
statements. 78 It was arguably a logical extension of the UK’s “cake and eat it”
philosophy towards the entire Article 50 TEU process – particularly in seeking to
reassure businesses and investors that the economic impacts and disruptions of
withdrawal would be minimal.
On the other hand, the European Council’s April 2017 Guidelines declared that
the main purpose of the Article 50 TEU negotiations was to ensure an orderly
withdrawal. The process should therefore commence with a “first phase” aimed at
providing as much clarity and certainty as possible on the immediate effects of UK
withdrawal. By contrast, any agreement on the future EU-UK relationship could only be
finalised and concluded after the UK’s withdrawal. However, an overall understanding
of that future relationship could and should be identified during a “second phase” of the
Article 50 TEU negotiations. To that end, the Union would be ready to engage in
preliminary and preparatory discussions with the UK, as soon as the European Council
were to decide that sufficient progress had been made on the “first phase” issues. To the
extent necessary and legally possible, the Article 50 TEU negotiations might also seek to
determine transitional arrangements, in order to provide a post-withdrawal bridge
towards some foreseeable future relationship.79
The European Council’s approach to the question of sequencing and timing was
evidently and radically different from that of the UK Government. But the European
Council’s plan was fully supported by other Union actors;80 and (unsurprisingly) was
subsequently confirmed in the Council’s negotiating directives for the Commission from
May 2017.81 The UK Government suggested that a major row over sequencing and

77
HMG, The United Kingdom’s exit from and new partnership with the European Union (Cm 9417, 2
February 2017).
78
E.g. Prime Minister’s notification letter to President of the European Council of 29 March 2017;
Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the
European Union (Cm 9446, 7 March 2017).
79
European Council (Art 50), Guidelines of 29 April 2017, paras 4-6.
80
E.g. European Parliament, Resolution on negotiations with the UK following its notification that it
intends to withdraw from the European Union (5 April 2017).
81
Council Decision authorising the opening of negotiations with the United Kingdom for an agreement
setting out the arrangements for its withdrawal from the European Union (22 May 2017).
13

timing could consume the negotiations just as soon as they had (finally) started.82 And
indeed, it was only with Theresa May’s “Florence Speech” in September 2017 that the
UK finally accepted the reality of the situation and began to work within the parameters
laid down by the Union institutions.83
The dispute over sequencing and timing proved fundamental to the entire Article
50 TEU process and its resolution had far reaching consequences not only for the conduct
but also the eventual outcomes of the withdrawal negotiations: for example,
concentrating time and attention on agreeing the Withdrawal Agreement as a legal text
that would resolve the immediate separation issues in an orderly manner; ruling out any
possibility of the future EU-UK relationship being formally negotiated (let alone
concluded) before withdrawal had already taken place; conjuring into existence the need
for a political declaration that would nevertheless outline the parties’ mutual
understanding and aspirations for what that future relationship might consist of; and
creating the pressing need for an appropriate transitional regime, more wide-ranging in
scope and more onerous in character than either party had originally envisaged, so as to
bridge the inevitable gap which would arise between the act of withdrawal and the
subsequent conclusion of a new relationship.
To some extent, the European Council’s decision on sequencing and timing was a
direct product of its four-tiered political objectives about how to manage the UK’s
withdrawal: maintaining the unity of the Union and protecting the integrity of its legal
order took overriding priority; after that, the limited time available for negotiations
should focus on delivering a smooth and orderly withdrawal; with that job done, the
parties could address the significantly more difficult challenge of forging a new
relationship together. And of course, that political understanding was much more
realistic than the preference expressed by the UK Government: after all, the time required
to settle not just the separation issues but also the future relationship would surely exceed
the two years available by default under the Treaties; to have followed the UK approach
would have incorporated a substantial risk of outright failure into the entire withdrawal
negotiations right from their very outset. Needless to say, subsequent events undoubtedly
proved the European Council’s initial political evaluation to be entirely sound.
But the European Council’s decision on sequencing and timing was not solely
political, pragmatic and realistic. It also reflected the desire to find an interpretation of
Article 50 TEU that would fit satisfactorily within the wider constitutional framework of
the EU legal system: the treaty governing the nuts-and-bolts of withdrawal should be
separate and distinct from any agreement on the longer term EU-UK relationship. After
all, the very text of Article 50 TEU explicitly distinguishes between (on the one hand)
“an agreement… setting out the arrangements for [the relevant State’s] withdrawal” and
(on the other hand) “the framework for [the relevant State’s] future relationship with the
Union”: the former agreement is to be negotiated and concluded simply “taking account
of” (not addressing or incorporating or otherwise giving concrete legal expression to) the
latter framework. Earlier versions of the withdrawal clause, drafted during the
Convention on the Future of Europe, had indeed suggested that the withdrawal agreement

82
E.g. <<https://www.ft.com/content/01396086-38ae-11e7-821a-6027b8a20f23>>.
83
UK Prime Minister, Florence Speech: A New Era of Cooperation and Partnership between the UK and
the EU (22 September 2017). Contrast, e.g. with David Davis’ comments at the 3rd round of EU-UK
negotiations (31 August 2017).
14

should directly settle both the separation issues and the future relationship – but the final
text of Article 50 TEU was amended to make clear that the two issues were to be handled
separately.84
Moreover, the Treaty drafters decided that conclusion of a withdrawal treaty
under Article 50 TEU should be possible with the support of a (super-qualified) majority
in the Council; and (as we have seen) the Commission and the Member States further
agreed that Article 50 TEU conferred an exceptional competence upon the Union
institutions alone to conclude any withdrawal treaty (even as regards areas falling within
shared competence and with no possibility of ratification also by domestic institutions).85
That approach and understanding may well have been constitutionally tolerable in respect
of an agreement dealing only with the immediate and inherent challenges of withdrawal.
But it would not be anywhere near as persuasive in the case of a wide-ranging
cooperation agreement between the Union and an external partner intended to last far into
the future: to interpret Article 50 TEU as a valid legal basis not only for separation issues
but also the future relationship, exempted from the normal constitutional rules governing
issues such as mixity, and without any compelling textual or contextual reason for doing
so other than political convenience for the withdrawing State, would override our normal
institutional and procedural expectations concerning the division of competence between
the Union and its Member States.
If Article 50 TEU could not provide an appropriate legal basis for the Union to
conclude an agreement also covering the future relationship with the UK, that left the
question: which other Treaty provisions might provide an alternative legal basis for the
Union to reach a parallel agreement on that future relationship, before withdrawal had
actually taken place? Here, the relevant Treaty texts left little room for ambiguity: all of
the relevant alternative provisions and legal bases provided for under the Treaties make
clear that the Union can negotiate and conclude agreements “with third countries”.86 For
that reason, the European Council adopted the view that the Union institutions could not
legitimately exercise their existing external relations competences so as to engage in (let
alone conclude) formal negotiations with an existing Member State – even one which has
notified its intention to withdraw under Article 50 TEU, but which otherwise remains a
Member State subject to all of the relevant provisions of Union law.87
For those reasons, there are strong grounds for arguing that the European
Council’s approach to the sequencing and timing of negotiations was not only politically
more realistic and empirically grounded, but also legally more robust than the alternative
interpretation championed by the UK. Ultimately, however, the issue was decided at the
political rather than the strictly legal level: the Court was never called upon to clarify the
precise nature of the Union’s competences under Article 50 TEU.88

84
See, in particular, the original proposals for a “withdrawal clause” contained in CONV 648/03; their
amended version in CONV 850/03; and their final version in OJ 2004 C 310.
85
Section 2.1.1 (above).
86
E.g. Articles 216 and 218 TFEU.
87
Subject to the explicit qualifications contained in Article 50(4) TEU.
88
The ruling in Case C-621/18, Wightman, C:2018:999, stressing that the purpose of Article 50 TEU is to
deliver an orderly withdrawal, can be seen (at best) as only a passing (hardly a conscious and specific)
judicial endorsement of the Commission/Council interpretation.
15

3. The Withdrawal Agreement
Besides its preamble, the Withdrawal Agreement comprises six main parts, three
protocols and nine annexes.89 However, our discussion will focus on four key issues of
high legal as well as political importance: governance of the treaty, including its
interpretation, dispute settlement and internal legal effects (3.1); the post-withdrawal,
status quo transition period (3.2); the protection of existing migrant citizens’ rights (3.3);
and the challenge of avoiding a “hard border” across the island of Ireland (3.4).
Needless to say, the Withdrawal Agreement addresses a host of other salient
issues – but considerations of space and relative significance preclude any further
discussion: for example, of the precise methodology for calculating the UK’s financial
settlement;90 the detailed rules regulating a lengthy series of “other separation issues”
involving the orderly completion of various ongoing procedures under Union law and / or
the future treatment of certain existing legal rights, obligations and relationships;91 those
provisions addressing the specific situation of the UK’s Sovereign Base Areas in the
Republic of Cyprus;92 and the agreement reached in respect of Gibraltar.93
It is worth noting that there were a series of additional “separation issues” which
one or other party had hoped would be addressed in the Withdrawal Agreement but that
did not eventually form the basis of more detailed negotiations or ultimately benefit from
any explicit provisions in the final treaty: for example, the legal regime that should
govern the winding-up of cross-border services in the course of being provided between
the Union and the UK on the basis of Article 56 TFEU as at the end of the transition
period.94
3.1. Governance
In certain respects, the governance provisions of the Withdrawal Agreement feel entirely
familiar and caused no particular trouble in the negotiations. In particular, Article 164
WA establishes a Joint Committee responsible for the overall implementation and
application of the Withdrawal Agreement. Article 165 WA also creates various
specialised committees (for example) on citizens’ rights, Ireland/Northern Ireland and the
financial settlement – though their existence shall not prevent either party raising any
matter directly before the Joint Committee.95 In accordance with standard international
practice, the Joint Committee shall (inter alia): prevent problems in the areas covered by
/ resolve disputes arising under the Withdrawal Agreement;96 adopt decisions as provided

89
Article 182 WA: the Protocols and Annexes shall form an integral part of the Withdrawal Agreement.
90
Part Five WA.
91
Part Three WA.
92
Protocol relating to the Sovereign Base Areas of the United Kingdom of Great Britain and Northern
Ireland in Cyprus (hereafter: Cyprus Protocol).
93
Protocol on Gibraltar.
94
Excluded from the Commission’s original mandate but marked for future additional negotiating
directives: see Council Decision of 22 May 2017, Annex, para 10. Note also, e.g. the issue of onward
mobility rights for migrant UK nationals: see Section 3.3.2 (below).
95
See also Annex VIII on the Rules of Procedure of the Joint Committee and Specialised Committees.
Note sections 15B-15C European Union (Withdrawal) Act 2018 as amended by European Union
(Withdrawal Agreement) Act 2020.
96
Article 164 WA.
16

for under the Withdrawal Agreement and make appropriate recommendations (always
acting by mutual consent); 97 and adopt amendments as provided for under the
Withdrawal Agreement.98 Similarly, the Joint Committee may (inter alia): delegate
certain responsibilities to, change the tasks of, establish additional or dissolve existing
specialised committees; and amend certain parts of the Withdrawal Agreement in order to
correct errors, address deficiencies or deal with unforeseen situations.99 In accordance
with Article 166 WA, decisions of the Joint Committee shall be binding on the parties
and enjoy the same legal effects as the Withdrawal Agreement itself; the Union and the
UK are obliged to implement decisions of the Joint Committee.
In other respects, however, the governance provisions proved to be a sore point in
the Article 50 TEU process and were only settled in the very final stages of the
negotiations that resulted in the first Withdrawal Package of November 2018. Three
issues warrant discussion: interpretation of the agreement; dispute settlement and
enforcement; and the internal legal effects of the treaty.
3.1.1. Interpretation of the Withdrawal Agreement by the Parties
The Withdrawal Agreement contains various basic principles of interpretation which are
binding on the parties individually as well as within the Joint Committee, for example:
identifying the instruments that comprise “Union law” as referred to in the Withdrawal
Agreement;100 providing that “Union law” generally means the relevant instruments as
applicable on the last day of the transition period together with relevant acts
supplementing or implementing those provisions;101 defining the territorial scope of the
treaty, particularly when it comes to the various territories associated with the UK;102 and
specifying the precise dates for entry into force of different provisions of the Withdrawal
Agreement.103 Two provisions on interpretation are particularly important.
First, Article 7(1) WA provides that references to Member States and competent
national authorities in those provisions of Union law made applicable by the Withdrawal
Agreement shall include the UK and its competent authorities; except as regards
membership of, attendance at meetings of or participation in decision-making by Union
institutions, bodies and agencies etc; and as regards attendance at meetings of comitology

97
Article 166 WA.
98
E.g. Article 36(4) WA (cross-border social security coordination); Article 172 WA (dispute settlement
rules of procedure); Article 181 WA (arbitration panel code of conduct); Article 10(1) Cyprus Protocol
(references to Union law in the Protocol).
99
Though not in relation to Parts One, Four and Six; only for four years after the end of the transition
period; and provided such decision do not amend essential elements of the treaty.
100
Article 2(a) WA. Note also Article 7(2) WA: unless otherwise provided for in the treaty, references to
the Union include Euratom.
101
Article 6 WA: except for Parts Four (transition) and Five (financial settlement); and unless otherwise
provided for under the treaty, e.g. in the Protocol on Ireland/Northern Ireland (see Section 3.4.4 (below))
and under the Cyprus Protocol (Article 1(4)). Note that various provisions also govern the potential
incorporation into the Withdrawal Agreement of certain future amendments to Union instruments made
applicable by the treaty, e.g. in the Protocol on Ireland/Northern Ireland (see Section 3.4.4 (below)); and
under Article 36 WA on future amendments to Union social security legislation.
102
Article 3 WA.
103
Article 185 WA.
17

committees and expert groups etc of the Commission and Union bodies and agencies etc
(unless otherwise provided for in the Withdrawal Agreement).104
Secondly, Articles 4(3)-(4) WA provides that provisions of the Withdrawal
Agreement referring to concepts or provisions of Union law shall be interpreted and
applied in accordance with the methods and general principles of Union law itself; and in
particular, in conformity with any relevant caselaw of the CJEU delivered before the end
of the transition period. There is no explicit provision to govern the relevance of
subsequent CJEU caselaw for the parties’ interpretation of the Withdrawal Agreement;
though the Union’s representatives in the Joint Committee would obviously be bound to
respect all relevant CJEU jurisprudence when exercising their functions and powers.105
3.1.2. Dispute Settlement and Enforcement under the Withdrawal Agreement
Without prejudice to the application of Union law pursuant to the agreement, Article 5
WA provides that the parties shall (in full mutual respect and good faith) assist each other
in carrying out its tasks; take all appropriate measures (general or particular) to ensure
fulfilment of their obligations; and refrain from any measure which could jeopardise
attainment of the agreement’s objectives. For those purposes, Article 167 WA states that
the parties shall endeavour to agree on the interpretation and application of the agreement
and make every attempt to arrive at a mutually satisfactory resolution of any matter
affecting its operation. However, in the event that a dispute does arise, the Union and the
UK agree to have recourse only to those procedures provided for under the Withdrawal
Agreement.106
For those purposes, the Union originally proposed that the CJEU should act as the
primary dispute settlement body under the Withdrawal Agreement as a whole, including
as regards the interpretation and application of those provisions applicable after expiry of
the transition period.107 The UK objected on the basis that its “red lines” included the
UK breaking free of the jurisdiction of the CJEU; but in any case, it would be
inappropriate for the court of one party to have jurisdiction over the agreement for both
parties. The UK argued instead for an independent arbitral body to settle post-transition
disputes arising under the treaty. 108 Although the Union was ultimately willing to
concede that the CJEU would not act as the sole or even primary forum under the
Withdrawal Agreement for the settlement of post-transitional disputes,109 the Union also
had its own red lines – including the non-derogable constitutional principle that the CJEU
must enjoy final jurisdiction over the interpretation of Union law in any situation where

104
See, e.g. Article 34(1) WA; Article 1(5) Cyprus Protocol; also Sections 3.2.1 and 3.4.4 (below).
105
However, see section 3.1.3 (below) on internal legal effects of the treaty, particularly for the UK and its
domestic judicial and administrative authorities. Note also that the treaty contains certain specific
provisions on dynamic interpretation in accordance with evolving CJEU caselaw, e.g. Article 13(2)
Protocol on Ireland/Northern Ireland (hereafter: PINI); Article 1(2) Cyprus Protocol.
106
Article 168 WA.
107
See Commission, Position Paper on Governance (12 July 2017).
108
See UK, Technical Note on Implementing the Withdrawal Agreement (13 July 2017). Also: UK, Future
Partnership Paper on Enforcement and Dispute Resolution (23 August 2017).
109
Though note certain special provisions on enforcement, e.g. CJEU enforcement proceedings against the
UK as regards elements of Part Five (under Articles 160 and 161 WA).
18

such interpretation would become binding upon the Union institutions.110 Given the
extent to which the Withdrawal Agreement refers to and depends upon Union provisions
and concepts, it was therefore imperative that any dedicated dispute settlement body
created for the purposes of the treaty should respect the fundamental requirement to
protect the autonomy of Union law, in particular, by creating a preliminary reference
mechanism for the delivery of a binding CJEU ruling on the proper interpretation of
Union law.
Thus, in the case of disputes arising after expiry of the transition period, the
following system shall apply.111 To begin with, the parties shall endeavour to resolve any
dispute through consultations in good faith within the Joint Committee in an attempt to
reach a mutually agreed solution.112 If no such solution has been reached by the Joint
Committee within 3 months, either party may request the establishment of an arbitration
panel (or sooner, by mutual agreement).113 The Withdrawal Agreement contains detailed
rules on the establishment and composition of an arbitration panel as well as the
procedure and time-frames for its proceedings.114 However, under Article 174 WA,
where a dispute submitted for arbitration raises a question about the interpretation of
Union law concepts or Union law provisions as referred to in the treaty,115 the arbitration
panel must request the CJEU to give a ruling on that question – for which purpose, the
CJEU shall have jurisdiction and its ruling shall be binding on the referring panel.116
Otherwise, Article 175 WA provides that an arbitration panel ruling shall be
binding on the parties,117 which must adopt any measures necessary to comply in good
faith, within an agreed and reasonable period of time.118 If at the end of that period, the
complainant considers that the respondent has failed to comply, it may request another
arbitration panel ruling (again subject to oversight by the CJEU as regards the binding
interpretation of relevant Union law);119 and may further request the imposition of a lump
sum or penalty payment.120 The respondent’s further non-compliance – either with the
original arbitration ruling or with an order to make financial settlement – will entitle the

110
E.g. Opinion 1/91, EEA Agreement, C:1991:490; Opinion 1/92, EEA Agreement II, C:1992:189;
Opinion 1/00, European Common Aviation Area, C:2002:231; Cases C-402/05 & C-415/05, Kadi,
C:2008:461; Opinion 1/09, European and Community Patents Court, C:2011:123; Opinion 2/13, Accession
to ECHR, C:2014:2454; Opinion 1/17, CETA, C:2019:341.
111
See Article 185 WA on the entry into force of the post-transition dispute settlement mechanism. Note
other provisions governing continuation of CJEU jurisdiction even post-transition: e.g. Title X, Part Three
on winding up ongoing procedures; Article 158 WA on citizens’ rights; Article 160 WA on the financial
settlement; Article 13(1) PINI on Irish border arrangements; Article 12 Cyprus Protocol on UK Sovereign
Base Area arrangements. For disputes arising during the transition period, see Section 3.2.1 (below).
112
Article 169 WA.
113
Article 170 WA.
114
Articles 171-173 WA. Note also Article 181 WA on independence and immunity and Annex IX on
Rules of Procedure.
115
Or a question about whether the UK has complied with its obligations under Article 89(2) WA.
116
The relevant provisions of Article 161 WA shall apply.
117
Note also Article 180 WA: the arbitration panel shall make every effort to decide by consensus but may
act by majority (though without issuing dissenting opinions). All rulings are binding on the EU and the UK
and shall be made public (subject to the protection of confidential information).
118
Article 176 WA contains detailed provisions on determining the reasonable time for compliance with a
panel ruling.
119
Article 177 WA.
120
Article 178 WA.
19

complainant to suspend rights and obligations under the Withdrawal Agreement (apart
from those contained in Part Two on Citizens’ Rights) or under any other agreement
between the Union and the UK (under the conditions provided for therein) in a
proportionate manner and on a temporary basis.121 If by this stage the parties remain in
dispute over compliance, either may request a further arbitration panel ruling (still subject
to the provisions on CJEU jurisdiction) that may order termination of the complainant’s
suspension / the respondent’s penalty.122
As in other international contexts: the treaty’s complex provisions concerning
enforcement and compliance through arbitration should act as a powerful incentive for
the parties to avoid post-transition disputes through political dialogue and consensus in
the Joint Committee. But conversely: if (for the sake of argument) the UK Government
were determined to provoke disagreement over interpretation and / or application of the
Withdrawal Agreement, the latter’s dispute settlement mechanism may well furnish the
Union with only a relatively cumbersome and ineffective means of correction or redress.
3.1.3. Internal Legal Effects of the Withdrawal Agreement
Many agreements deal only with interpretation, dispute settlement and enforcement under
the treaty itself as between the parties and as a matter of public international law. When
it comes to the legal effects of the agreement within the internal legal systems of each
party, that is often left entirely to their respective constitutional rules in accordance with
the traditional distinction between monist and dualist systems. However, it is well known
that an entirely laissez-faire approach to domestic legal effects can risk certain
“enforcement asymmetries” between the parties – especially in the case of agreements
that contain relatively detailed and concrete rights and obligations; and particularly if one
side operates a monist system whereas its counterpart acts as a dualist order. Since the
Union is effectively a monist system, it often insists that its international agreements
contain specific provisions to determine the appropriate legal status of the agreement
within each contracting party: sometimes ruling out any direct internal legal effects,
sometimes insisting upon explicit provisions to ensure such effects, either for the entire
agreement or at least as regards parts thereof.123
The Withdrawal Agreement falls into precisely this category of potentially
asymmetrical agreements between the monist EU and the dualist UK. For that reason,
the Union insisted that the treaty contain detailed provisions describing its intended legal
effects also within the legal system of each party.124 Articles 4(1)-(2) WA provides that

121
Article 178 WA. If the respondent considers that the extent of suspension is not proportionate, it may
request a temporary standstill pending another arbitration panel ruling.
122
Article 179 WA.
123
Contrast, e.g. the sophisticated enforcement provisions of the EEA Agreement with the limited internal
legal effects of the EU-Canada agreement. Sometimes, of course, the CJEU itself addresses the risk of
unacceptable asymmetries through its application of the criteria for direct internal legal effects of particular
international agreements – the WTO agreements offering a classic example: see, e.g. Case C-149/96,
Portugal v Council, C:1999:574; Case C-377/02, Van Parys, C:2005:121.
124
Note also certain special provisions concerning post-transition domestic legal effects within / as regards
the UK: e.g. preliminary references as regards Part Two on citizens’ rights (Articles 158 and 161 WA); the
independent monitoring authority as regards Part Two (Article 159 WA); preliminary references as regards
elements of Part Five on the financial settlement (Articles 160 and 161 WA); under Articles 12-13 Cyprus
Protocol.
20

both the treaty and Union law made applicable thereunder shall produce, in respect of and
within the UK, the same legal effects as within the Union and its Member States. In
particular, natural and legal persons must be able to rely directly on any relevant treaty or
Union law provisions which meet the conditions for producing direct effect. The UK
must ensure compliance with that obligation through primary legislation, including the
power of judicial and administrative authorities to disapply inconsistent or incompatible
provisions of domestic law. Moreover, in addition to the general principle that Union law
for the purposes of the treaty must be interpreted and applied in accordance with the
methods and general principles of Union law, and in accordance with CJEU caselaw
delivered before the end of transition, Article 4(5) WA further states that the UK’s
judicial and administrative authorities shall have “due regard” to any relevant CJEU
caselaw delivered after that date.125
The European Union (Withdrawal Agreement) Act 2020 made provision for the
legal effects of the Withdrawal Agreement within the UK legal system.126 In theory, the
principles of direct effect and primacy should therefore remain part of UK law, not just
during the transition period, but also for a considerable period thereafter, in accordance
with the relevant provisions of the Withdrawal Agreement (for example) on citizens’
rights and the Northern Irish border. But in practice, UK constitutional lawyers may yet
have to decide how far the domestic constitutional principle of parliamentary sovereignty
has indeed been nuanced or qualified by the UK’s clear international obligations –
especially in a situation where subsequent primary legislation conflicts with the terms of
the Withdrawal Agreement and the traditional principle of implied repeal would normally
require the 2020 Act to be set aside rather than the subsequent (contradictory) legislation
to be disapplied.127
3.2. Transition period
We noted above how the UK had originally proposed settling the future EU-UK
relationship before withdrawal took place, leading to an “implementation period” during
which the new arrangements could gradually be brought into force.128 By contrast, the
European Council insisted that formal negotiations on the future relationship could only
begin after withdrawal had been completed, but suggested that the Article 50 TEU
negotiations might nevertheless include clearly defined, time-limited transitional
arrangements to provide the bridge to some foreseeable new settlement. Insofar as such
arrangements might include a temporary prolongation of the Union acquis, that would
require existing Union instruments and structures to apply.129
Having lost the battle over sequencing and timing, the UK was forced radically to

125
Note also the provisions on post-transition cooperation as regards domestic judicial enforcement under
Articles 161-163 WA.
126
See, in particular, European Union (Withdrawal) Act 2018 as amended by European Union (Withdrawal
Agreement) Act 2020; as well as the substantive provisions of the latter legislation itself.
127
Particularly having regard to section 38 European Union (Withdrawal Agreement) Act 2020:
parliamentary sovereignty subsists notwithstanding the domestic legal effects attributed to parts of the
Withdrawal Agreement and nothing in the legislation derogates from the sovereignty of Parliament.
128
HMG, The United Kingdom’s exit from and new partnership with the European Union (Cm 9417, 2
February 2017).
129
European Council (Art 50), Guidelines of 29 April 2017, paras 4-6.
21

revise its withdrawal plans and negotiation strategy. In her Florence Speech of
September 2017, Theresa May accepted that the UK would be leaving the Union without
any agreement on the future relationship and instead requested a transition period during
which the Union acquis would be prolonged almost in its entirety – a far cry indeed from
the original UK proposals, but also much further even than the European Council had
envisaged.130 Given that, by the time of publication, much of the transition period will
already have expired, there seems little justification for dwelling on the full details of the
regime provided for under Part Four of the Withdrawal Agreement. After outlining the
essential provisions, we will focus on how far transition might fulfil its various
objectives; together with some of the key political and legal controversies raised by
transition.
3.2.1. Main provisions on transition
The basic principle is set out in Article 127(1) WA: unless otherwise provided for, Union
law shall be applicable to and in the UK during the transition period.131 Article 126 WA
provides that transition will expire on 31 December 2020 (corresponding to the end of the
Union’s current multiannual financial framework). However, Article 132 WA also
provides that the Joint Committee may (before 1 July 2020) adopt a single decision
extending transition for “up to one or two years”.132
The continued applicability of Union law to the UK during transition includes not
only the substantive rules, but also those Union law methods and general principles
governing their interpretation, as well as their legal effects within the UK legal system.133
Obviously, transition also covers any legislative, administrative or judicial developments
in Union law that might occur during the relevant period – a point which proved
particularly contentious within the UK, since Leave activists claimed that the EU might
adopt measures deliberately designed to harm British interests.134 The UK Government
therefore tried but failed to secure an explicit mechanism for the Joint Committee to
address disputes about the applicability of new Union measures to the UK. 135
Undeterred, the UK Government claimed that the general duty of good faith under Article
5 WA, together with the ordinary powers of the Joint Committee, would be sufficient to
meet British concerns about unwanted infra-transition changes to Union law. 136
However, it is worth stressing that the obligation to act in good faith is explicitly without
prejudice to the application of Union law as prescribed under the treaty; while the Joint

130
Though for a considerable time, the UK Government still insisted on referring to transition as the
“implementation period” (and insisted upon an explicit reference in the Withdrawal Agreement itself:
Article 126 WA).
131
Note also Article 127(6) WA: during transition, references to a “Member State” in applicable Union law
shall generally be understood as including the UK.
132
Though under slightly different terms and conditions, e.g. as regards UK financial contributions, UK
participation in Union programmes and the provision of UK agricultural subsidies: see Article 132 WA.
133
Article 127(3) WA.
134
A point publicly contested by the UK Government, e.g. D Davis, Teesport Speech: Implementation
Period – A Bridge to the Future Partnership between the UK and EU (26 January 2018).
135
See HMG, Draft Text for Discussion: Implementation Period (21 February 2018). See instead Article
128(7) WA on limited consultation with the UK as regards certain draft Union acts during transition; and
Article 129(5) WA on case-by-case coordination with the UK in respect of Union external relations.
136
E.g. D Davis, Statement on EU-UK Article 50 Negotiations (19 March 2018).
22

Committee enjoys no power of adaptation or exemption as regards transitional

developments in Union law. 137 It is also worth noting that the UK’s domestic
implementing legislation purports to provide for the parliamentary “review” of Union
measures adopted or proposed during the transition period and considered to raise matters
of “vital national interest” to the UK.138
Notwithstanding the “status quo” basis for transition, various provisions of Union
law as at the date of withdrawal do not apply to the UK during transition: for example,
measures not binding upon the UK as a Member State (in fields such as EMU, the AFSJ
and under enhanced cooperation);139 and those concerning Union citizens’ political rights
(citizens’ initiatives and voting in local elections). 140 Furthermore, the Withdrawal
Agreement describes other situations in which the UK is subject to special treatment: for
example, no British participation in any future enhanced cooperation;141 restrictions on
the UK’s ability to opt-into additional AFSJ measures;142 British exclusion from PESCO
under Article 42 TEU;143 restrictions on UK access to certain security-related sensitive
information;144 the exclusion of UK nationals from recruitment as Union officials etc;145
and the possibility for Member States to cease surrendering own nationals to the UK
during transition pursuant to the European Arrest Warrant.146
However, the most extensive deviations from the “status quo” assumption
underpinning transition concern the UK’s institutional status under Union law. In
accordance with Article 7 WA, the UK is excluded from membership, decision-making
and governance as regards all Union entities and structures also during the transition
period.147 There are only very limited exceptions: for example, UK representatives may
attend meetings of certain Union committees and expert groups etc, on an exceptional
and invited basis, where the Member States also take part, and either the discussion
concerns individual acts addressed to UK actors, or the UK’s presence is necessary and in
the Union’s interest for the effective implementation of Union law. 148 Further
implications of the UK’s institutional non-existence as from the point of withdrawal are
also spelled out in the treaty: for example, the UK parliament cannot issue “reasoned
opinions” objecting to Union proposals on subsidiarity grounds;149 and the UK is not

137
See Articles 5, third paragraph and 164 WA.
138
See section 13A European Union (Withdrawal) Act 2018 as amended by European Union (Withdrawal
Agreement) Act 2020.
139
Article 127(1), second paragraph, subparagraph (a) WA.
140
Article 127(1), second paragraph, subparagraph (b) WA.
141
Article 127(4) WA.
142
Article 127(5) WA. The UK had requested more extensive opt-in rights as regards AFSJ measures: see
Draft Text for Discussion: Implementation Period (21 February 2018).
143
Article 127(7)(a) WA.
144
Article 127(7)(b) WA.
145
Article 127(7)(c) WA.
146
Article 185 WA – in which case, the UK may take reciprocal (in)action. The treaty contains other
specific derogations from the “status quo” principle underpinning transition, e.g. in Part Five on the
financial settlement.
147
Article 128(1) WA.
148
Article 128(5) WA. See also Article 34(1) WA on administrative cooperation as regards social security
coordination.
149
Article 128(2) WA.
23

entitled to submit proposals, initiatives or requests as if it were still a Member State.150

Article 130 WA also makes specific provision as regards fisheries: for the purposes of
Article 43(3) TFEU, as regards any period falling under transition, the UK will merely be
consulted as regards fishing opportunities relating to the UK; though the Union commits
to maintaining its relative stability keys for the allocation of relevant fishing
opportunities.151
Despite its institutional exclusion, the UK remains bound by the duty of sincere
cooperation throughout the transition period.152 In addition, Part Four of the Withdrawal
Agreement contains provisions on supervision and enforcement during transition. 153
Under Article 131 WA, the Union’s institutions, bodies and agencies etc shall have their
powers under Union law in relation to UK authorities, natural / legal persons and
residents etc (for example, as regards Commission competition and state aid
investigations).154 In particular, the CJEU shall have jurisdiction as provided for in the
Treaties: thus allowing (say) for enforcement proceedings against the UK and
preliminary references from British courts; also (during transition) as regards
interpretation and application of the Withdrawal Agreement itself.155 Moreover, the
treaty includes a further body of rules on the conclusion of judicial and administrative
proceedings still pending at the expiry of the transition period or arising from facts which
occurred before the end of transition.156 It is worth noting that the Commission had
originally proposed additional powers of enforcement vis-à-vis the UK for the duration of
transition – including the power to suspend certain benefits of the UK’s continued Single
Market participation – but those proposals were eventually excluded from the final
treaty.157
3.2.2. Objectives of transition and likelihood of their delivery
What were the main objectives behind the UK’s request for a post-withdrawal, status quo
transitional regime and how likely is it that those objectives will be realised in practice?
From the UK’s perspective, transition in fact served four main purposes: two that were
originally acknowledged in the Florence Speech; another that was explicitly added into
the mix by the UK Government later in the negotiations; and a final goal that became
evident rather from the words and deeds of senior British politicians over time.

150
Article 128(3) WA. See also Article 128(4) WA on the ECB / ESCB; Article 128(6) WA on lead
authorities for risk assessments etc under Union law; and Article 129(7) WA on operational leadership
under the CFSP / CSDP.
151
The UK had requested the need for prior EU-UK agreement on the UK’s fishing quotas (see Draft Text
for Discussion: Implementation Period (21 February 2018)) but this was refused.
152
A point specifically reinforced in respect of Union external relations: see Article 129(3) WA.
153
Note that various provisions of the treaty concerning supervision and enforcement (e.g. provisions for
UK preliminary references and duty of independent monitoring as regards citizens’ rights; e.g. dispute
settlement via the Joint Committee and by arbitration panel) will only apply from the end of transition: see
Article 185 WA.
154
See also Article 95 WA on the binding force and enforceability of Union decisions vis-à-vis the UK.
155
See also Article 89 WA on the binding force and enforceability of CJEU rulings vis-à-vis the UK.
156
See Title X of Part Three; especially Articles 86-87 (judicial proceedings) and 92-93 (administrative
proceedings). Note other provisions governing the CJEU’s continuing jurisdiction after transition, e.g.
Articles 158 and 160 WA; Article 13(1) PINI; Article 12 Cyprus Protocol.
157
See proposed Article 165 of the draft Withdrawal Agreement: TF50 (2018) 33/2.
24

First, Prime Minister May claimed that transition would give both parties more
time to plan for the full consequences of the UK’s withdrawal, in terms of their respective
internal legal and logistical preparations: certainly useful in the EU’s case, particularly as
regards raising awareness among those public and private actors across the Member
States most likely to be affected in practice by the UK’s departure;158 absolutely essential
for the UK, given its almost total lack of pre-referendum preparations and the sheer scale
of the task facing even just the Government and Parliament simply to ready the UK legal
system for the very act of withdrawal.159 Transition was originally meant to provide a
baseline extra 20 months for post-withdrawal planning – but in the end, the Article 50
TEU process dragged on for so long that much of that extra time was made available
simply by repeatedly extending the UK’s formal membership, leaving transition itself to
supply only an additional 11 months for Brexit preparations.160 Yet that extra time was
still critical for the UK to carry on with its basic legislative and regulatory planning for
life entirely outside the Union.161
Secondly, the Florence Speech also made clear that transition was intended to
give the parties more time to finalise the terms of their future relationship, so that public
and private actors need only experience the expense and inconvenience of a single major
regulatory change, i.e. at the end of transition, rather than once at the time of withdrawal
and then again upon the entry into force of an agreement on future relations. That
original objective is closely related to the UK’s third goal for transition, which emerged
somewhat later in the negotiations, though both considerations together prompted the
British to request the power of extension now contained in Article 132 WA. In
particular, the UK Government became increasingly concerned that, should transition
expire without any future relationship agreement in place, it would not only lead to “two
regulatory changes” but also trigger automatic application of the “Irish backstop”
provisions as proposed and agreed by Theresa May in 2018 (in the face of virulent
opposition from Europhobic Tories).162 Among the measures requested by the UK in
order to help avoid such an outcome (and deter a parliamentary rebellion) was the
potential to extend transition: if it appeared likely that January 2021 would arrive with no
future relationship agreement in place, the UK could at least choose between either
further prolonging the status quo, in the expectation of still reaching a prompt new
settlement that would deliver only “one regulatory change” as well as supersede the
“Irish backstop”; or instead allowing transition to expire, thus letting the “Irish backstop”
become operable, and also accepting that “two regulatory changes” would eventually be
needed.163
Given the change in political direction heralded by the 2019 UK general election,
neither of those objectives are now likely to be delivered. Indeed, the previous UK desire

158
Consider, e.g. the Commission’s numerous “preparedness” notices available via
<<https://ec.europa.eu/info/brexit/brexit-preparedness/preparedness-notices_en>>.
159
See Section 2 (above).
160
I.e. from 1st February – 31st December 2020.
161
E.g. the UK Government only announced its new plans for post-Brexit immigration policy in February
2020: see Home Office, The UK’s Points-Based Immigration System (Policy Statement, 19 February 2020).
At the time of writing, Parliament is still to adopt primary legislation setting out the framework for post-
Brexit regimes in fields such as agriculture and fisheries.
162
See Section 3.4 (below).
163
See, e.g. Theresa May, Statement on European Council (22 October 2018).
25

for some mechanism to avoid triggering the “Irish backstop” is no longer even relevant:
the old May arrangements have been replaced by a Johnson alternative which the UK
Government seems entirely happy to invoke without any risk of splitting the
Conservative Party.164 And as for guarding against “two regulatory changes”: whether
through over-self-confidence in its own negotiating prospects or reckless indifference as
to the consequences of its actions, the Johnson Government has ruled out requesting any
extension of the transition period as provided for under Article 132 WA – indeed, even
going so far as to enshrine its position in primary legislation.165 In such circumstances, it
is simply not credible to expect that the future relationship will be properly settled in time
for 31 December 2020. It therefore appears that the Withdrawal Agreement and its
transition period will only have postponed the dreaded “regulatory cliff-edge”, and Brexit
will ultimately entail “two regulatory changes”, i.e. the very twin prospects which had so
discombobulated Johnson’s predecessor.
Fourthly and finally, it has become apparent over time and from the conduct of
various UK politicians within as well as outside government, that the post-withdrawal,
status quo transition period would serve another useful if rather more cynical purpose: to
create significant space and time between the actual act of departure (on the one hand)
and the eventual emergence of its true consequences (on the other hand) – sufficient to
establish a plausible deniability that any negative impacts upon the UK should actually be
attributed to leaving the EU; and to limit the extent to which the relevant decision-makers
could convincingly be held responsible and accountable in the fickle court of public
opinion. “Brexit got done” on 31 January 2020 – so whatever might happen many
months later [when an unextended transition expires with no replacement deal ready to
take effect] can hardly be the fault of Brexit or the Brexiters…166 Given the apparent
credulity of large sections of the British population on all matters related to the European
Union, it feels entirely plausible that transition will succeed handsomely in facilitating
this particular political strategy.
3.2.3. Other legal and political controversies associated with transition
On the UK side, transition might (partially) serve several (more or less legitimate)
political objectives, but it has been controversial chiefly because of the criticism that it
reduces the UK to a “vassal state” of the Union – bound by almost all of the latter’s rules
but without any say over their adoption. 167 There is obviously some truth in that
criticism, though it is usually voiced without any countervailing acknowledgment of the
fact that it was the UK Government that proposed transition in its current form, in order
to shield fundamental British interests from the consequences of the UK’s own choices.
Nevertheless, perceptions about the one-sided nature of transition were reinforced by the
UK’s limited success in changing the terms originally proposed by the Commission: for
example, the UK failed not only in its attempt to control which transition-era Union

164
165
166
Note reports about the UK Government’s attempts to restrict the official use of words such as “Brexit”
after 31 January 2020, e.g. <<https://www.theguardian.com/politics/2020/feb/04/no-more-deal-or-no-deal-
no-10s-brexit-diktat-to-foreign-office>>.
167
See, e.g. <<https://www.theguardian.com/politics/2018/jan/24/david-davis-rejects-vassal-state-claim-
over-brexit-transition>>.
26

measures would become automatically binding, but also in its effort to insist that “exit
day” (rather than expiry of the transition period) should act as the relevant date for ending
free movement of persons and calculating entitlement to citizens’ rights protection under
the treaty.168 The UK’s demands bore greater fruit in the field of external relations.
True, the UK was soundly rebuffed when it challenged the Union proposal whereby the
British might negotiate, sign and ratify international agreements in areas of exclusive
Union competence but could only bring such treaties into force during transition with the
Council’s specific authorisation. 169 But the UK did manage to secure certain
concessions: for example, as regards new Council decisions under Chapter 2, Title V
TEU on the CFSP, the UK may declare that, for vital and stated reasons of national
policy, the UK exceptionally will not apply a particular decision;170 and the treaty also
provides that, should the EU and the UK manage to conclude a new agreement in the
field of CFSP / CSDP during the transition period, it may displace the need for continued
UK adherence to the relevant provisions of Union law.171
On the EU side, the transitional arrangements were less politically senstitive, but
they still raised some interesting constitutional questions – not least, the legality of
treating what had in fact become a third country just as if it were still a Member State, for
a vast array of regulatory purposes, including a significant number of situations in which
primary as well as secondary Union law suggested that the relevant rights and obligations
should be enjoyed / imposed only by Member States and / or their nationals.172 On the
one hand, it is true that Article 50 TEU is an unusual legal basis designed to deal with an
entirely novel situation.173 Moreover, the Union institutions had already signalled their
understanding that Article 50 TEU confers an exceptional competence which might in
some respects deviate from our ordinary expectations under Union constitutional law.174
On the other hand, Article 50 TEU is unequivocally premised upon the fact that the
Treaties shall cease applying to the UK, which is immediately transformed into a third
country, as from the very moment of its withdrawal. Is it really within the competence of
the Union institutions to “pretend” that the UK is still a Member State for all manner of
purposes – particularly when the UK could have achieved the same basic result as
transition, but chose not to do so for its own domestic political reasons, using the means
explicitly foreseen by the Treaties, i.e. simply by extending its period of formal Union
membership as provided for under Article 50 TEU?

168
See UK Policy Statement, EU Citizens Arriving in the UK During the Implementation Period (28
February 2018).
169
Article 129(4) WA. See the UK proposals contained in Draft Text for Discussion: Implementation
Period (21 February 2018).
170
Article 129(6) WA – though the UK must then refrain from action likely to conflict with / impede Union
action based on that decision.
171
Article 127(2) WA – though this possibility appears to have been rendered defunct by the Johnson
Government’s decision not to see any new agreement with the Union in the field of CFSP / CSDP : see
Section 4.3 (below). Note that the UK sought but failed to secure a similar “displacement” provision also
in respect of AFSJ measures: see Draft Text for Discussion: Implementation Period (21 February 2018).
172
See further, e.g. M Dougan, “An airbag for the crash test dummies? EU-UK negotiations for a post-
withdrawal ‘status quo’ transitional regime under Article 50 TEU” (2018) 55 CMLRev Special Issue 57.
173
E.g. House of Commons Exiting the European Union Committee, The progress of the UK’s negotiations
with the EU on withdrawal (HC 372, 1 December 2017); House of Lords European Union Committee,
Brexit: Deal or No Deal (HL 46, 7 December 2017).
174
See Section 2.1.1 (above).
27

For both parties, their agreement on a transition period created certain common
challenges – particularly as regards existing Union external agreements with other third
countries / international organisations. Article 129(1) WA states that the UK shall remain
bound by existing international agreements concluded by Union, by the Member States
acting on the Union’s behalf, or by the Union and the Member States acting jointly.175 A
footnote then provides that “[t]he Union will notify the other parties to these agreements
that during the transition period the UK is to be treated as a Member State for the
purposes of these agreements”.176 Yet a purely bilateral agreement between the Union
and the UK was no guarantee that third countries would automatically consent to
maintain the legal effects of existing international agreements in their relations with the
post-withdrawal UK. Indeed, there might be political and / or economic incentives to do
otherwise: for example, if another third country were to treat withdrawal as a convenient
opportunity to exert pressure and renegotiate better terms with either the UK or the
Union. The success of the Withdrawal Agreement’s approach to existing external
agreements therefore depended on the parties’ ability to persuade their other international
partners to acquiesce in the assumptions underpinning their own post-withdrawal, status
quo transition.177
3.2.4. At the end of transition
At the end of the transition period, whether or not it is extended in accordance with
Article 132 WA, the UK will finally experience what it really means to become a third
country.
Of course, the UK will remain bound by its obligations under the Withdrawal
Agreement, many of whose provisions will only then become fully effective: for
example, the future protection of migrant citizens’ rights and the regime governing the
border between Ireland and Northern Ireland; 178 as well as the “other separation
provisions” governing (inter alia) the customs treatment of goods currently moving
between the Union and UK territories, the final winding-up of ongoing Union
proceedings involving UK actors in the field of cross-border criminal cooperation, the
protection of personal data processed before the end of transition or in accordance with
the Withdrawal Agreement itself, or determining the ownership, rights of use and
consumption of special fissile materials upon the UK’s full extraction from Euratom.179

175
See also Article 129(2) WA making limited provision for UK participation in any bodies etc established
by / under such agreements. Note the UK’s request for more extensive rights of attendance: see Draft Text
for Discussion: Implementation Period (21 February 2018). See also the specific provision relating to
fisheries: Article 130(3) WA.
176
Another footnote, to Article 132(1) WA, provides for further notification by the Union in the event of an
extension to transition. See Commission, Template for the Note Verbale sent to International Partners after
signature of the Withdrawal Agreement (31 January 2020).
177
As acknowledged, e.g. by HMG, Technical Note on International Agreements during the
Implementation Period (8 February 2018) and Draft Text for Discussion: Implementation Period (21
February 2018). See further, e.g. R Wessel, “Consequences of Brexit for international agreements
concluded by the EU and its Member States” (2018) 55 CMLRev Special Issue 101.
178
See Sections 3.3 and 3.4 (below).
179
Article 185 WA: with only limited exceptions, the “other separation provisions” contained in Part Three
become applicable from the end of transition. Note also Article 8 WA on ceasing the UK’s access to Union
28

Otherwise, the UK will find its relations, not only with the EU but also with every
other international actor, governed by whatever multilateral and / or bilateral
arrangements that do continue to exist or are created de novo under international law.180
Moreover, we will discover whether the 11 months of additional time afforded by
transition were indeed sufficient for public and private actors to complete their
preparations for the internal consequences of UK withdrawal. And in due course,
commentators will be able to assess whether Theresa May was right to warn against the
costs of multiple regulatory adaptations of the sort which have effectively been
guaranteed by the Johnson Government’s decision to rule out any extension to the
transition period.
3.3. Citizens Rights
Deliberate misinformation about the nature and effects of the free movement of persons
between the EU and the UK played a prominent role in the Leave campaign during the
2016 referendum.181 Hostility towards migrant Union citizens was then quickly adopted
by the UK Government effectively as official policy: contemptuous language about
“citizens of nowhere”, promises to “take back control of our borders” and vows to deal
with European “queue jumpers” became commonplace in British political discourse.182
Of course, the long term costs of such pandering to post-truth populism will be measured,
through the UK’s decision to end free movement and indeed any more favourable
immigration regime with the EU, in the implications for broader relations in trade,
security and other fields of cross-border cooperation.183 But the immediate question
raised by the referendum was: what would happen to the millions of UK and EU27
nationals who had already exercised their existing free movement rights in good faith?
We need not recount in detail, but it is still important to stress, the terrible personal and
professional costs created by the UK’s decision to leave: prolonged uncertainty and
anxiety about what the future might hold; aggravated by troubling incidents, often linked
to the UK’s broader “hostile environment” policy, ranging from “deportation letters”
being sent to longstanding Union citizens to a recorded rise in racist incidents and
widespread evidence of private sector discrimination against EU nationals.184

networks, information systems and databases; which is nevertheless subject to a series of exceptions, e.g.
under Articles 29(2) and 34(2) WA in the field of citizens’ rights.
180
Consider, e.g. the “continuity agreements” negotiated between the UK and various other third countries
with a view to replicating existing EU agreements (particularly in the field of trade) either in the event of a
“no deal” Brexit or upon expiry of the transition period.
181
Perhaps the most infamous example being Nigel Farage’s “Breaking Point” poster campaign of June
2016.
182
See, e.g. Theresa May, Speech at Conservative Party conference (5 October 2016); Lancaster House
Speech (17 January 2017); Speech to CBI (19 November 2018).
183
See Section 4 (below).
184
See, e.g. House of Lords European Union Select Committee, Brexit: Acquired Rights (HL 82, 14
December 2016). Testimonials from affected EU citizens in the UK are recorded in E Remigi, V Martin
and T Sykes, In Limbo (2017: ISBN 9781548026080). See also the experience of UK citizens across the
EU27 as recorded in E Remigi, D Williams, H De Cruz, S Pybus, C Killwick and P Blackburn, In Limbo
Too (2018: ISBN 9781721674244).
29

The UK Government resisted repeated parliamentary calls for the UK to offer

unilateral protection to affected individuals.185 Instead, its February 2017 White Paper
expressed a desire for the two parties to reach an agreement offering full guarantees to all
relevant UK and EU27 citizens.186 And indeed, the issue of citizens’ rights became
central to the Article 50 TEU process. Yet despite the UK’s promise not to use
individuals as bargaining chips, its opening negotiating position fell far short of a “full
guarantee to all”.187 Serious disputes about the personal and material scope of protection
to be offered under the withdrawal treaty were only resolved in late 2018.188 We will
discuss the general scheme on citizens’ rights as provided for under Part Two of the
Withdrawal Agreement (together with the special provisions on interpretation and
enforcement in this field contained elsewhere in the treaty).189 However, it is important
to note that the text of the Withdrawal Agreement cannot be read in isolation: the regime
on citizens’ rights still offers the UK and each of the EU27 discretionary choices that
need to be made and implemented within their respective national legal systems;
including the possibility, as regards most but not all of the treaty provisions, that the UK
and / or EU27 states might offer more generous treatment under domestic law.190
3.3.1. EU law as the general baseline for citizens’ rights protection
The general starting point adopted under the Withdrawal Agreement is that existing
Union law should provide the basis for identifying both who is protected into the future
and what the content of their rights should be. Thus, Article 10(1)(a)-(b) WA identifies
for protection those UK or EU27 citizens who exercised their right to reside in the host
state in accordance with Union law before the end of the transition period and continue to

185
E.g. House of Lords European Union Committee, Brexit: Acquired Rights (HL 82, 14 December 2016);
House of Commons Exiting the European Union Committee, The Government’s Negotiating Objectives:
The Rights of UK and EU Citizens (HC 1071, 5 March 2017); House of Lords European Union Committee,
Brexit: UK-EU Movement of People (HL 121, March 2017). The UK Government eventually offered a
unilateral guarantee for migrant Union citizens’ rights: Department for Exiting the European Union,
Citizens’ Rights: EU Citizens in the UK and UK Nationals in the EU (6 December 2018); note also Home
Office, European Temporary Leave to Remain in the UK (28 January 2019).
186
While suggesting that it was the Union itself which was preventing progress on this issue: HMG, The
United Kingdom’s exit from and new partnership with the European Union (Cm 9417, 2 February 2017).
187
Contrast Commission, Position Paper on Essential Principles on Citizens’ Rights (12 June 2017) with
HMG, Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU (26
June 2017).
188
See, e.g. the series of “joint technical notes” on citizens’ rights published by the Commission and the
UK (e.g. on 20 July 2017, 31 August 2017 and 28 September 2017); culminating in the Joint Report from
the negotiators of the European Union and the United Kingdom Government on progress during Phase 1 of
negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union
(8 December 2017); together with the Joint Technical Note on Citizens’ Rights, TF50 (2017) 20.
189
Article 185 WA: with only limited exceptions, the provisions of Part Two (as well as the related Articles
158-159 WA) are applicable only from the end of transition. Note that separate agreements protecting
citizens’ rights have been concluded between the UK and the EFTA-EEA states (as part of the EEA-EFTA
Separation Agreement) as well as with Switzerland (under the dedicated Swiss Citizens’ Rights
Agreement). The Withdrawal Agreement allows those extraneous agreements to be linked into the EU-UK
provisions concerning cross-border social security coordination: see Article 33 WA.
190
Article 38(1) WA – excluding the social security coordination rules under Articles 30-36 WA.
30

reside in the host state thereafter.191 For the rest of their lives (provided they continue to
meet the relevant conditions),192 those citizens will enjoy a defined series of rights and
protections: for example, the right to continue residing in the host state in accordance
with Union law;193 the possibility of acquiring permanent residence (based on continuous
lawful residence in accordance with Union law, taking account periods both before and
after the end of transition);194 the right to change status (say) between student, worker and
economically inactive person;195 various rights relating to work / self-employment and to
equal treatment in accordance with Union law;196 and provision for continuing protection
as regards existing decisions on / pending applications for the mutual recognition of
professional qualifications.197 In addition, Articles 30-36 WA provide for a continuing
regime of social security coordination between the Union and the UK, in respect of a
broader category of persons: for example, as regards the future aggregation and
exportation of pensions in the event of cross-border retirement; in respect of authorised
medical procedures ongoing / medical cover for emergencies during any trip in progress
as at the end of the transition period; and as regards the award of family benefits to which
certain individuals are entitled as at the expiry of transition.198
The decision to rely on Union law as a general baseline for the protection of
citizens’ rights under the Withdrawal Agreement might sound uncontroversial – but it is
still potentially problematic. In particular, limiting entitlement to protection (in most
situations) to economically active and financially independent citizens as defined under
Union free movement law leads to potential problems: first, as regards those with “non-
linear” or “non-standard” migration experiences (such as insecure or irregular work,
careers breaks due to care responsibilities, and vulnerable children in social care); and
secondly, for those resident outside the strict scope of Union law yet without any
objection by their host country (such as students or retired people lacking comprehensive
sickness insurance).199 If a given State were to enforce the Withdrawal Agreement at
face value, that decision could have serious consequences for many individuals whose
residency was never previously questioned and who sincerely believed that their status
was unproblematic.200 Nor is it enough to retort: one cannot lose what one never had in
the first place. As Spaventa has pointed out: any change in or loss of status under Union
law is usually flexible and temporary; one can leave and come back, one might lose a job

191
Specific provision is also made for frontier workers: see Articles 9(b) and 10(1)(c)-(d) WA, i.e. citizens
who exercised their right to pursue an economic activity in a host state in which they do not reside, in
accordance with Union law, before the end of the transition period and continue to do so thereafter. Note
also the specific provisions on frontier workers in Article 1 Protocol on Gibraltar.
192
Article 39 WA.
193
Articles 13(1) and (4) WA. Article 14 WA covers rights of exit and entry.
194
Articles 11, 15 and 16 WA.
195
Article 17 WA.
196
Articles 12 and 23-25 WA.
197
Articles 27-29 WA.
198
Note also Annex I.
199
See further, on the vulnerable position of Union citizens within the UK, C O’Brien, Unity in Adversity:
EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart Publishing, Oxford, 2017).
200
The treaty contains certain standards of fair treatment, e.g. Article 18(1) WA contains a principle
evidential flexibility and Article 13(4) WA provides that discretion in applying the relevant limitations /
conditions shall be applied only in favour of the applicant. However, such benefits still presuppose that the
claimant meets the objective requirements laid down in the treaty and imposed under applicable Union law.
31

then find another, one can rectify an irregular situation. But a change in or loss of status
under the Withdrawal Agreement is potentially definitive and permanent: failing to
qualify for protection, or later ceasing to satisfy the continuing requirements thereof,
could well lead to the total loss of protected status with no possibility that it might be
regained.201
The fact that the Withdrawal Agreement generally provides only a minimum
standard is particularly important in this regard. For example, the UK announced that
qualification for “settled status” under domestic rules implementing the Withdrawal
Agreement would be based primarily on residence, without necessarily demanding full
compliance with Union free movement rules as regards (say) comprehensive sickness
insurance for economically inactive persons. 202 However, that could still leave
individuals awaiting qualification for permanent residency vulnerable to a change in
policy (or indeed simply to instances of adverse treatment) once the transition period
expires – especially since it remains unclear what might be the precise legal basis and
status of rights which are recognised through an admittedly more generous but still
unilateral application of the Withdrawal Agreement and without being strictly grounded
in the citizens’ rights provisions themselves.203
3.3.2. Deviations from the EU law baseline: better, worse, future and no protection
Notwithstanding the Union law baseline for future protection, there are various situations
where the Withdrawal Agreement provides for certain deviations. In a few instances, the
treaty in fact foresees higher standards of protection than existing free movement rules.
For example: the UK and Ireland may continue their longstanding arrangements of
special treatment for each other’s nationals – arrangements born less out of brotherly love
than the fact that there is no easy way for the UK to distinguish between Irish nationals
from the Republic and those from Northern Ireland.204 Irish nationals are not therefore
required to register for “settled status” in the UK – though there may still be advantages
to engaging with the system (for example, as regards the future legal status of non-
UK/Irish family members).205 Another example: protected migrant citizens will forfeit
their right to permanent residence after five (rather than the normal Union law benchmark
of two) consecutive years’ absence from the host state – partial compensation for the

201
See E Spaventa, Update of the Study on the Impact of Brexit in Relation to the Right to Petition and on
the Competences, Responsibilities and Activities of the Committee on Petitions (Research Study
commissioned by the European Parliament, Policy Department for Citizens’ Rights and Constitutional
Affairs: PE 604.959, April 2018). Note the very limited exception provided for in Article 19(4) WA.
202
HMG, EU Settlement Scheme: Statement of Intent (21 June 2018).
203
A strict approach (e.g. akin to Case C-333/13, Dano, C:2014:2358) might argue that only legal
qualification under the strict terms of Union law counts for protection under the Withdrawal Agreement;
whereas a more generous approach (akin to Case C-85/96, Sala, C:1998:217 and Case C-456/02, Trojani,
C:2004:488) would suggest that, if the host state offers or recognises protected status under the Withdrawal
Agreement, the individual is entitled to its full range of protections (even if they do not strictly satisfy its
basic requirements).
204
Article 38(2) WA. See further Section 3.4.1 (below).
205
See further below, on the treatment of the family members of migrant Union citizens: although limited,
those provisions may still be more generous than those applicable to the family members of UK and Irish
nationals under purely domestic UK immigration law.
32

potentially definitive and permanent consequences of losing protected status under the
Withdrawal Agreement.206
However, in other situations, the treaty allows for restrictions on migrant citizens’
rights that would not comply with existing Union free movement law – as illustrated by
several examples. First, the range of family members entitled to rights by association
with a protected migrant citizen is reduced – particularly as regards the ability of existing
but especially future family members to join a migrant citizen within the host state after
the end of the transition period.207 Secondly, any given host state may (at its own
discretion) make qualification for future protection under Part Two subject to a system of
compulsory registration.208 That is precisely what the UK decided to do through its
“settled status” scheme. 209 The Withdrawal Agreement does lay down certain
specifications for any such system: for example, a minimum six-month application
deadline from the end of transition for persons residing in the host state before that
date;210 provision for that deadline to be extended in the event of technical problems;
flexibility in situations where the applicant had reasonable grounds for failing to meet the
deadline; smooth, transparent and simple procedures for which certain controlled fees
may be charged;211 detailed rules on appropriate documentation to prove identity, lawful
residency and family status etc; and certain presumptions of protection pending the
outcome of any application or appeal.212 But host states requiring registration are entitled
to conduct systematic criminality and security checks on all applicants, to determine
whether any grounds exist for refusing protected status.213 Thirdly and in that regard,
Article 20 WA provides that criminal conduct committed before the end of transition is to
be assessed in accordance with Union free movement law – but criminal conduct
committed thereafter may be dealt with under national law (raising concerns about the
potential imposition upon protected citizens of disproportionate immigration penalties for
relatively minor criminal offences).214 Fourthly, own nationals are generally not covered
by the citizens’ rights provisions of the Withdrawal Agreement as regards relations with
or treatment by their home state. That restriction is potentially significant in certain

206
Articles 11 and 15(3) WA.
207
See Articles 9(a), 10(1)(e)-(f), 10(2)-(5), 24(2) and 25(2) WA. Family members that qualify for
protection are also offered a series of rights: e.g. Articles 13(2)-(4) WA on continuing residency in
accordance with Union law; e.g. Article 14 WA on rights of exit and entry; e.g. Articles 15 and 16 WA on
acquisition of permanent residence; e.g. Article 22 WA on the pursuit of economic activities in their own
right; e.g. Articles 12 and 23 WA on equal treatment with own nationals. However, the treaty imposes
certain restrictions on the ability of family members to change their status under Part Two: see Article 17
WA.
208
Article 18 WA. Note also Article 26 WA on compulsory documentary certification by frontier workers.
209
HMG, EU Settlement Scheme: Statement of Intent (21 June 2018).
210
The registration system is allowed to run, on a voluntary basis, during the transition period: see Article
19 WA.
211
Though no fees can be charged for exchanging existing permanent residence or equivalent documents:
Article 18(1)(h) WA. Note that the UK eventually decided to waive the fee for its “settled status” scheme:
see Theresa May, Statement to the House of Commons on Brexit (21 January 2019).
212
Articles 18(2)-(3) and 19-21 WA.
213
Article 18(1)(p) WA.
214
See, e.g. E Spaventa, Update of the Study on the Impact of Brexit in Relation to the Right to Petition and
on the Competences, Responsibilities and Activities of the Committee on Petitions (Research Study
commissioned by the European Parliament, Policy Department for Citizens’ Rights and Constitutional
Affairs: PE 604.959, April 2018).
33

situations: for example, as regards a British national who returns to the UK with a third
country family member (under the Surinder Singh caselaw);215 or for UK children in the
UK with a primary carer of third country nationality (under the Ruiz Zambrano
caselaw) 216 – though the UK indicated that it would unilaterally offer a degree of
protection, at least for individuals who have already claimed rights under the relevant
provisions of Union law by the end of the transition period.217
In addition, there are several situations where the treaty allows for the potential
imposition of additional future restrictions on migrant citizens’ rights that again would
not be permitted under existing Union law. For example: five years after the end of
transition, the host state may decide no longer to accept national ID cards for entry / exit
purposes, where such documents do not comply with certain security and data
specifications.218 Or again: the Joint Committee may decide that the UK will not align its
national legislation with various future amendments to the Union rules on cross-border
social security coordination (say) if the EU proposes to make certain additional benefits
exportable from the competent state by non-resident claimants.219
Last but not least, the Withdrawal Agreement allows for the total loss even by
protected migrant citizens of certain rights provided for under existing Union law – a
point again well-illustrated by several examples. First, there is no provision for
individuals to continue to enjoy voting rights in local elections within the host state: the
Union treated this as a bilateral issue for the UK and individual Member States.220
Secondly, there is no legal basis for the mutual recognition of future professional
qualifications, even as regards individuals falling within the protective scope of Part
Two: the Commission maintained that this was outside the scope of its negotiating
mandate and must be dealt with under negotiations about the future EU-UK
relationship.221 Thirdly and on the same basis, the Commission refused to include within
the Withdrawal Agreement any provision for protected UK migrants as regards onward
movement rights across the rest of the EU.222 Affected British nationals are thus placed
in a potentially difficult position – the so-called “golden cage”: their status may well be
protected within their chosen state of residence; but they are unable to claim any further
free movement under Union law (say, to change residence to, or conduct an economic
activity within, another Member State); unless they qualify for certain onward migration
rights under the Union rules on long-term resident third country nationals.223

215
Case C-370/90, Surinder Singh, C:1992:296.
216
Case C-34/09, Ruiz Zambrano, C:2011:124.
217
See HMG, EU Settlement Scheme: Statement of Intent (21 June 2018), para 6.12. The restriction
appears less significant for Union citizens, who will almost certainly continue to enjoy protection under
Union free movement law.
218
Article 14(1) WA.
219
See the detailed provisions contained in Article 36 WA.
220
See, e.g. TF50 (2017) 10; TF50 (2017) 17, #34. The UK has instead been reaching bilateral
arrangements on maintaining local voting rights with a range of Member States, e.g. an agreement with
Spain was announced in January 2019.
221
See, e.g. Joint Technical Note on Citizens’ Rights, TF50 (2017) 20, #58. See further Section 4 (below).
222
See Article 9(c) WA and, e.g. Joint Technical Note on Citizens’ Rights, TF50 (2017) 20, #58. Note that
the European Parliament sought to apply pressure for the Union to be more generous towards migrant UK
nationals here, e.g. Resolution of 13 December 2017, para 3; Resolution of 14 March 2018, para 52.
223
In particular: Directive 2003/109 concerning the status of third country nationals who are long term
residents, OJ 2004 L 16/44.
34

3.3.3. Special provisions on Interpretation and Enforcement of Part Two
The provisions on governance of the Withdrawal Agreement as a whole are also

applicable to Part Two on citizens’ rights: the Joint Committee and relevant specialised
committee; dispute settlement through arbitration (subject to the jurisdiction of the CJEU
and the exclusion of Part Two from the system of sanctions for non-compliance) etc.224
By their very nature, however, issues about interpretation and enforcement of the
citizens’ rights regime are more important at the level of domestic implementation. In
that regard, commentators anticipated that the Withdrawal Agreement would give rise to
numerous empirical challenges. Within the UK, for example, it was widely assumed that
the “settled status” scheme would generate problems simply through the novelty of the
system and the sheer number of people affected; including particular concerns about
uptake by those with only limited prior engagement with the immigration system and / or
by relatively vulnerable citizens (such as those in irregular work, children in care or
people with limited digital skills); and specific reservations about the clarity of the
criteria governing the exercise of administrative discretion in those situations (involving
the verification of appropriate documentation or assessment of criminality checks) where
the immigration authorities enjoyed the power to reject applications.225
In addition, several important legal provisions relate specifically to interpretation
and enforcement under Part Two of the Withdrawal Agreement. In the first place, and
besides the general provisions on consistent interpretation of the Withdrawal Agreement
as a whole, including by the UK and its domestic judicial or administrative authorities,226
Article 158 WA provides that, for cases commenced within eight years from the end of
transition, in which a question arises concerning the interpretation of Part Two, where a
UK court considers that a decision is necessary to enable it to render judgment, that court
may send a preliminary reference to the CJEU and will be bound by the latter’s
response.227 The rather arbitrary-sounding deadline of eight years appears simply to be a
pragmatic compromise, i.e. between the Union’s original desire for ongoing dynamic
alignment on citizens’ rights under the direct guidance of the CJEU versus the UK’s
starting point of declaring a “red line” over the jurisdiction of the Union courts after the
expiry of transition.228
In the second place, and again besides the general provisions on domestic
enforcement of the Withdrawal Agreement, including through the possibility of direct
effect and primacy for all relevant provisions within the UK legal order,229 the treaty
contains specific rules on access to administrative and judicial procedures in respect of

224
See Section 3.1 (above).
225
See further, e.g. House of Commons Exiting the European Union Committee, The Progress of the UK’s
Negotiations on EU Withdrawal: The Rights of UK and EU Citizens (HC 1439, 23 July 2018).
226
See Sections 3.1.1 and 3.1.3 (above).
227
Note that, in respect of decisions about an application for protection under the UK’s compulsory
registration scheme, the eight-year time limit begins to run from the date of the scheme’s formal (albeit
voluntary) introduction.
228
Note other provisions on continuing CJEU jurisdiction even post-transition: e.g. Title X, Part Three on
winding up ongoing procedures; Article 160 WA on the financial settlement; Article 13(1) PINI on Irish
border arrangements; Article 12 Cyprus Protocol on UK Sovereign Base Area arrangements.
229
35

any refusal of or restriction upon residency rights as contained in Part Two. 230
Furthermore, Article 159 WA obliges the UK to establish an independent monitoring
authority for citizens’ rights: to be fully operational as from the end of the transition
period; enjoying powers equivalent to those of the Commission; able to act on its own
initiative or in response to complaints; and including the power to seek judicial redress.231
However, one legitimately fears that the treaty’s dedicated provisions on
interpretation and enforcement under Part Two will do little to tackle the risk of private
(rather than public) sector confusion, abuse and discrimination. Given the novelty and
complexity of the new immigration system applicable to protected individuals, it seems
inevitable that certain employers, landlords and other service providers might struggle to
interact with or indeed seek deliberately to exploit migrant UK or Union citizens.232
Those risks are only heightened by the fact that Article 18(1) WA allows for the host
state to issue digital-only residence documentation. Certainly, the UK Government has
ignored multiple calls to provide migrant Union citizens with hard copy proof of their
protected status.233
3.4. Ireland and Northern Ireland
Of all the regions of the UK, Northern Ireland is likely to be most deeply affected by
withdrawal (despite the fact that a clear majority of the population there voted Remain in
the 2016 referendum); while of all the Member States of the Union, Ireland will be most
significantly impacted by the departure of the United Kingdom (even though the
Republic’s population obviously had no direct say in the 2016 referendum).234 The
Union therefore has a legitimate interest in and particular responsibility for the
consequences of Brexit across the island of Ireland: not only due to the direct threat to the
fundamental interests of a Member State; but also thanks to the Union’s role in the peace
process centred around the Good Friday Agreement;235 as well as the fact that Northern
Ireland now contains a substantial and permanent non-resident population of Union
citizens; and having regard to the future possibility of reunification of the North with the
Republic inside the Union.236

230
See Articles 18(1)(r) and 19-21 WA.
231
See, in particular, section 15 and Schedule 2 European Union (Withdrawal Agreement) Act 2020. Note
that the Joint Committee may decide (though only after eight years from the end of transition) that the UK
may abolish its independent monitoring authority: Article 159(3) WA.
232
See, e.g. House of Commons Exiting the European Union Committee, The Progress of the UK’s
Negotiations on EU Withdrawal: The Rights of UK and EU Citizens (HC 1439, 23 July 2018). Concerns
shared by the European Parliament: see Resolution on implementing and monitoring the provisions on
citizens’ rights in the Withdrawal Agreement (15 January 2020).
233
Most recently: by rejecting attempts by the House of Lords to amend the European Union (Withdrawal
Agreement) Bill 2019 so as to provide migrant Union citizens with a form residency document. See House
of Commons, European Union (Withdrawal Agreement) Bill: Explanatory Notes on Lords Amendments (21
January 2020).
234
See further, e.g. House of Lords European Union Committee, Brexit: UK-Irish Relations (HL 76, 12
December 2016).
235
Belfast (or Good Friday) Agreement of 10 April 1998.
236
Similar to the German experience, i.e. following reunification between the GDR and West Germany in
1990.
36

There are certain Brexit challenges facing the island of Ireland that the
Withdrawal Agreement itself cannot do very much to address: for example, the economic
risks facing Northern Ireland, through its relative dependence on public employment,
agricultural support and the labour of migrant Union citizens, all of which make it
particularly sensitive to any UK downturn and / or relevant policy changes;237 or the
extraordinary degree to which the Republic’s own economy (from manufacturing supply
chains to financial service networks) is interwoven with that of the UK, rendering it
especially vulnerable to the economic rupture now being pursued by the Johnson
Government.238 Brexit also poses other real headaches for British-Irish relations which
will need to be addressed within the context of the negotiations on future EU-UK
relations as a whole: for example, trying to maintain effective cooperation between the
competent authorities in Northern Ireland and the Republic, without full UK access to the
common instruments of police and judicial cooperation provided by Union law,
particularly in fields such as terrorism and organised crime.239 Nevertheless, there are
certain Brexit-derived concerns that the Withdrawal Agreement does indeed seek to
alleviate, through a dedicated Protocol on Ireland / Northern Ireland: for example, the
importance of Union law in providing firm legal guarantees of non-discrimination within
Northern Ireland; 240 the indispensible role of Union legislation in facilitating the
operation of the Single Electricity Market across the island of Ireland; 241 and the
contribution of Union law to effective North-South cooperation in fields such as
environment, health, transport, education, tourism and sport.242
3.4.1. The Border Problem Provoked by Brexit
Yet the key Brexit challenge facing the island of Ireland is how to maintain an open
border between the two constituent territories outside the context of common Union
membership.243
An open frontier is not just a matter of enormous economic and social importance,
especially for the border communities whose daily lives have been built around the
current arrangements. Nor it is just a matter of sensible logistics, faced with the almost
impossible task of securing and patrolling such a complex boundary punctuated by
hundreds of formal and innumerable informal crossing points. Above all, the open

237
See further, e.g. House of Commons Northern Ireland Affairs Committee, Northern Ireland and the EU
Referendum (HC 48, 26 May 2016); J Temple Lang, Brexit and Ireland: Legal, Political and Economic
Considerations (Research Study commissioned by the European Parliament, Policy Department for
Citizens’ Rights and Constitutional Affairs: PE 596.825, November 2017).
238
239
See further, e.g. House of Lords European Union Select Committee, Brexit: The Proposed UK-EU
Security Treaty (HL164, 11 July 2018) Ch 7.
240
Article 2 PINI (applicable as from the end of transition: Article 185 WA). Note section 23 and Schedule
3 European Union (Withdrawal Agreement) Act 2020.
241
Article 9 PINI (applicable as from the end of transition: Article 185 WA).
242
Article 11 PINI (applicable as from the end of transition: Article 185 WA). Note section 10(3)
European Union (Withdrawal) Act 2018 as amended by European Union (Withdrawal Agreement) Act
2020.
243
See further, e.g. M Dougan, “The ‘Brexit’ Threat to the Northern Irish Border: Clarifying the
Constitutional Framework” in M Dougan (ed), The UK After Brexit: Legal and Policy Challenges
(Intersentia Publishing, Cambridge, 2017).
37

border is of the utmost political significance. The Good Friday Agreement ended (or at
least very significantly downgraded) the de facto civil war in Northern Ireland during
which thousands were killed, tens of thousands were injured and entire communities were
forced from their homes. Social division, often complete segregation, persists between
unionists (largely Protestant and wanting Northern Ireland to remain within the UK) and
nationalists (largely Catholic and wishing for reunification with the Republic) – but at
least those differences can be addressed under the conditions of relative peace and
stability created by the Good Friday Agreement. Part of the latter’s genius is that it
allowed both main communities to feel that the existing constitutional settlement serves
their respective interests: unionists were reassured that Northern Ireland would remain
part of the UK for as long as a majority of its population desired;244 and while nationalists
might have to regard reunification as a more distant aspiration, in the meanwhile, one
could move freely across the island – with the only obvious difference being the change
on roadsigns from miles to kilometres. In short: the absence of a physical frontier is a
crucial part of a wider political settlement that helps secure and maintain cross-
community support for the peace process.
The terrible prospect raised by Brexit was that UK withdrawal from the Union
might lead to the erection of a “hard border” across the island of Ireland: either for the
movement of people or for the passage of goods.
Insofar as Brexit threatens the imposition of a physical frontier for the movement
of people between the North and the Republic, addressing that problem in fact has little to
do with Union law. After all, the UK and Ireland were never part of the Schengen
system. 245 They have instead maintained their own Common Travel Area – albeit
informally as a matter of mutual understanding and internal practice, rather than under
any explicit international agreement or obligation between or upon the two states.246
Keeping an open border for persons is therefore primarily a bilateral issue to be resolved
between the UK and Ireland. The Withdrawal Agreement simply recognises their
continued prerogatives – subject to Ireland’s duty to uphold the rights of entry and
residence conferred upon Union citizens and their protected family members under the
Treaties.247 Otherwise, the UK Government accepted that withdrawal should not impair
the future functioning of the CTA; 248 and subsequently signed a Memorandum of
Understanding with Ireland explicitly affirming their joint commitment to protect and
uphold the CTA.249 Insofar as the British might harbour concerns about Ireland acting as
a “soft underbelly” for illegal entry, residence or work in the UK by either EU or non-EU
nationals, the British authorities will simply have to rely on more effective internal

244
Note Article 1 PINI (applicable as from the entry into force of the treaty: Article 185 WA).
245
See Protocols 19-21 to the Treaties.
246
The CTA is already recognised under existing Union law: see Article 2 of Protocol 20 to the Treaties.
See further, e.g. B Ryan, “The Common Travel Area between Britain and Ireland” (2013) 64 MLR 831;
House of Commons Library, The Common Travel Area and the Special Status of Irish Nationals in UK
Law (Briefing Paper No 7661, 15 July 2016).
247
Article 3 PINI. See also Section 3.3.2 (above).
248
That stance was not entirely obvious from HMG, The United Kingdom’s exit from and new partnership
with the European Union (Cm 9417, 2 February 2017); but was set out more clearly in HMG, Position
Paper on Northern Ireland and Ireland (16 August 2017) section 2.
249
Memorandum of Understanding between the Government of Ireland the Government of the UK
concerning the Common Travel Area and Associated Reciprocal Rights and Privileges (8 May 2019).
38

enforcement of their own immigration restrictions (for example, at the point of seeking
employment or access to public services).250 The CTA and with it an open border for
persons are therefore safe – at least for now. After all, there is nothing to stop a future
UK administration from renouncing the CTA, regardless of the consequences for British-
Irish relations in general or the situation of Northern Ireland in particular. But equally,
the Republic itself might well decide to terminate the CTA and could then (in addition)
exercise its right under Union law to become a full member of the AFSJ – though that
would only become more than a purely theoretical possibility, in the future event of
reunification with the North and thus the elimination of any threat of a “hard border”.251
3.4.2. The Challenge of Avoiding a Hard Border for the Movement of Goods
Far more serious problems were involved in the challenge of avoiding a “hard border” for
the movement of goods across the island of Ireland. Of course, the constitutional
framework applicable to trade in goods is fundamentally different from that applicable to
the movement of persons. After all, external customs and trade relations between the
Single Market and third countries falls within the exclusive competence of the Union:
finding a solution to the Irish border on goods was therefore a matter for the EU (not
simply Ireland) and the UK.252 But in and of itself, that allocation of responsibility was
neither here nor there. The real difficulties facing the island of Ireland were entirely of
the UK Government’s making.
After the 2016 referendum, as we have seen, the UK Government announced that
the UK would be leaving not just the EU but also the Customs Union and the Single
Market.253 In itself, that announcement implied the creation of separate customs and
regulatory territories, together with all their accompanying checks and formalities, not
only between the Union and the UK but also between Ireland and Northern Ireland.
However, when the serious dangers posed by that policy finally dawned upon the UK
Government, the latter made a second promise: there would be no return to a hard border
on the island of Ireland under any circumstances.254 Now, the only feasible way to
deliver that second promise, as well as keep the first, would be for Northern Ireland to
remain within the Customs Union and at least parts of the Single Market (even if the rest
of the UK did not). But under pressure from the hardline unionist DUP, upon whose
parliamentary votes its very survival now depended, the UK Government also made a
third promise: Northern Ireland would be leaving the Customs Union and the Single
Market along with the rest of the UK and there would be no new barriers to trade erected

250
See, e.g. HMG, Position Paper on Northern Ireland and Ireland (16 August 2017) para 33.
251
In accordance with Article 4 of Protocol 19 and Article 8 of Protocol 21 to the Treaties.
252
Article 3 TFEU (applicable as from the end of transition: Article 185 WA).
253
In particular: HMG, The United Kingdom’s exit from and new partnership with the European Union
(Cm 9417, 2 February 2017).
254
Once again: that stance was not entirely obvious from HMG, The United Kingdom’s exit from and new
partnership with the European Union (Cm 9417, 2 February 2017); but was set out more clearly in HMG,
Position Paper on Northern Ireland and Ireland (16 August 2017) section 3.
39

within the UK itself.255 Yet surely the only way to keep that third promise was… for the
UK as a whole to remain within the Customs Union and the Single Market!
Having promised entirely irreconcilable outcomes to different constituencies of
people, the UK Government was then obliged to negotiate some more credible solution
directly with the Union.256 In their Joint Report of December 2017, the Commission and
the UK Government agreed that a “hard border” for goods would best be avoided through
the overall future EU-UK relationship.257 However, those negotiations were not due to
commence until after withdrawal had been completed, might take a considerable period
of time, might not reach any workable solution to the Irish border problem and indeed
might not produce any final agreement at all. To guard against those contingencies, the
two parties therefore agreed that the Withdrawal Agreement should include a “backstop”
solution to prevent the return of a hard border across the island of Ireland in any event.
In particular, “the United Kingdom [would] maintain full alignment with those rules of
the Internal Market and the Customs Union which, now or in the future, support North-
South cooperation, the all-island economy and the protection of the [Good Friday]
Agreement”.258
3.4.3. One, two, then three “backstop” models
It was obvious that the UK Government would struggle to present credible proposals for
a future economic relationship that could simultaneously permit the UK to leave the
Customs Union and the Single Market, yet without introducing trade barriers between the
Union and the UK as a whole, and therefore between the Republic and the North in
particular.259 But even though that only increased the importance of the default guarantee
to be provided by the “backstop”, finding an acceptable model for inclusion in the
Withdrawal Agreement proved a torturous affair. Three main proposals assumed draft or
final legal form.
To begin with, in February 2018, the Union suggested a Northern Ireland-only
backstop: the establishment of a “common regulatory area” permitting the free movement

255
See, e.g. HMG, Position Paper on Northern Ireland and Ireland (16 August 2017) para 45. Note that,
throughout many crucial points in the Article 50 TEU negotiations, Northern Ireland’s devolved institutions
were effectively in abeyance and the population was thus deprived of any cross-community leadership.
256
In addition to the European Council’s Guidelines of April 2017 and the Council’s negotiating mandate
of 22 May 2017, see Commission, Guiding Principles for the Dialogue on Ireland / Northern Ireland (20
September 2017).
257
Joint Report from the negotiators of the European Union and the United Kingdom Government on
progress during Phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal
from the European Union (8 December 2017).
258
Para 49 of the Joint Report. Note also para 50 of the Joint Report and Prime Minister, Open Letter on
Commitments to Northern Ireland (8 December 2017) – both intended to reassure unionists about Northern
Ireland’s place within the UK and its internal market.
259
Consider the proposals contained in HMG, The Future Relationship between the United Kingdom and
the European Union (Cm 9593, 17 July 2018). Note that ardent Leave campaigners insisted on
technological solutions to the Irish border problem, despite the lack of evidence from international practice
to demonstrate their feasibility: consider, e.g. L Karlsson, Smart Border 2.0: Avoiding a hard border on the
island of Ireland for customs control and the free movement of persons (Research Study commissioned by
the European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs: PE 596.828 of
November 2017); House of Commons Northern Ireland Affairs Committee, The Land Border between
Northern Ireland and Ireland (HC 329, 16 March 2018).
40

of goods between the Union and Northern Ireland; based on the latter’s continued
inclusion within the Union customs territory as well as its alignment with a wide range of
Union regulatory standards and level playing field guarantees; but also necessitating the
expansion / introduction of checks on goods travelling by sea or air between Northern
Ireland and Great Britain.260 In other words, the UK can keep its first and second
promises, but only by breaking its third.
However, the UK Government (egged on by its incandescent DUP allies) rejected
those proposals as an unacceptable attempt to undermine the territorial, constitutional and
economic integrity of the UK.261 It is fair to say that many observers were perplexed by
that reaction. After all, it is self-evident that Northern Ireland is already treated very
differently from the rest of the UK for all manner of (not only financial and regulatory)
purposes.262
But the ball was now in the UK’s court and its second body of proposals – this
time for a UK-wide backstop mechanism – ultimately provided the basis for agreeing the
first Withdrawal Package in November 2018.263 The centrepiece of that alternative
backstop consisted of a de facto customs union between the EU and the whole of the UK
so as to remove tariffs in trade between the two parties and thereby solve half of the Irish
border problem. Naturally, that customs arrangement was constructed almost entirely on
the Union’s own terms: for example, the UK would have to comply with the Union’s
tariff system and much of the latter’s trade regime in relations with third countries; as
well as respect a wide range of minimum standards in fields like competition, state aid,
environmental and labour protection. Above all, this de facto customs union had no
definite expiry date: the two parties might hope to replace it with an alternative in the
future; but once activated, the backstop would remain in place unless and until the Union
itself agreed to amend, replace or abolish it. Even then, an EU-UK customs union would
only solve half the Irish border problem. The remaining challenge, of avoiding
regulatory checks on goods moving across the island of Ireland, would be addressed by
Northern Ireland indeed remaining aligned with all relevant Single Market rules and
processes and in turn expanding / introducing various checks on goods travelling from
Great Britain into Northern Ireland. In other words, the UK Government would keep its
second promise (no hard border in Ireland) but only part of its first promise (the UK as a
whole might be leaving the Single Market, but would effectively stay in the Customs
Union) and only part of its third promise (Northern Ireland might well be treated the
same as the rest of the UK in customs, but not for regulatory purposes).
As one would expect, Tory Europhobes and the DUP clambered to outperform
each other with outrage and indignation. And as we know, May attempted in vain to
salvage her Withdrawal Package in general, and her backstop proposals in particular, by

260
See TF50 (2018) 33.
261
See, e.g. <<https://www.bbc.co.uk/news/uk-politics-43224785>>; Theresa May, Letter to Donald Tusk
(19 March 2018). Also: House of Commons Northern Ireland Affairs Committee, The Land Border
between Northern Ireland and Ireland (HC329, 16 March 2018).
262
Note that Northern Ireland was only recently brought into line with the rest of the UK on issues such as
marriage equality – in the face of the DUP’s insistence that Northern Ireland should be treated entirely
differently.
263
As published in OJ 2019 C 66 I. Note that, in the interim, the UK did offer other (half-baked) Irish
border suggestions, e.g. HMG, Technical Note on Temporary Customs Arrangement (7 June 2018); to
which the Commission swiftly reacted (TF50 (2018) 39 of 11 June 2018).
41

securing additional but essentially political assurances from the EU (for example, that
neither party regarded the draft Protocol arrangements as desirable and both sides would
work hard to replace them as soon as possible with some more durable model);264 but
without the UK Government managing to make good on its promise to secure more
radical, legally binding amendments to its own original proposals (either a fixed time-
limit on the backstop’s lifespan, or a unilateral right for the UK to terminate the backstop
of its own free will).265
The third and final set of proposals to avoid a “hard border” for the movement of
goods across the island of Ireland emerged from the new UK Government under Boris
Johnson, who approached the problem with a very different set of priorities and
calculations from those which had so taxed his immediate predecessor. 266 Those
proposals formed the basis of intensive negotiations, culminating in a new Protocol on
Ireland/Northern Ireland, within the revised Withdrawal Package of October 2019, on the
basis of which UK withdrawal duly occurred.267 In effect, May’s UK-wide backstop has
been replaced by another Northern Ireland-specific regime: after all that, it was the UK’s
inconvenient third promise (and with it the continuing support of the DUP) that indeed
gave way in the end. However, the final agreement is not quite the same as the Union’s
original proposals for a “common regulatory area”: Northern Ireland will remain formally
within the UK customs territory, at the same time as being treated de facto as part of the
Union’s customs zone, and directly subject to an (albeit more limited) array of Single
Market regulation.
3.4.4. What complicated webs we weave…
In the first place, the Protocol makes provision for Northern Ireland’s future place within
the Union’s customs and regulatory area. In particular, Northern Ireland will remain
subject to large swathes of Union legislation covering customs, trade, the manufacture
and marketing of goods, VAT, excise duties and state aid.268 Such legislation will apply
to Northern Ireland on a dynamic basis.269 The Joint Committee will also address the
implications of the future adoption of entirely new Union rules that nevertheless fall

264
See, e.g. European Council (Art 50), Conclusions of 13 December 2018; Exchange of Letters between
the President of the European Council, the President of the Commission and the UK Prime Minister of 14
January 2019; “Strasbourg Deal” of 11 March 2019 consisting of Instrument relating to the Withdrawal
Agreement and Joint Statement relating to Political Declaration. Note also HMG, Commitments to
Northern Ireland and its integral place in the United Kingdom (9 January 2019); Prime Minister, Speech in
Belfast (5 February 2019); HMG, Unilateral Declaration concerning the Northern Ireland Protocol (12
March 2019).
265
See further, e.g. Attorney General’s Legal Advice of 13 November 2018; Theresa May, Statement to the
House of Commons on Brexit (12 February 2019); Attorney General’s Revised Legal Advice of 12 March
2019.
266
See Letter from the Prime Minister to the President of the European Commission and Explanatory Note
on UK proposals for an amended Protocol on Ireland / Northern Ireland (2 October 2019).
267
As published in OJ 2019 C 384 I. Note the detailed rules on entry into force of the Protocol contained in
Article 185 WA.
268
See, in particular, Articles 5, 7, 8 and 10 PINI – which include various specific exceptions /
modifications, e.g. Article 5(3) PINI on fisheries and aquaculture products; Article 7 PINI on Northern
Ireland matching the VAT exemptions / reductions application in Ireland; Article 10(2) PINI on state aid
for Northern Irish agriculture.
269
Article 13(3) PINI (unless otherwise provided for).
42

within the scope of application of the Protocol.270 Unlike so much of the rest of the
Withdrawal Agreement, all relevant Union concepts and provisions must be interpreted
fully in accordance with the CJEU’s evolving caselaw.271 In return, Articles 30 and 110
TFEU will continue to apply to Northern Ireland;272 quantitative restrictions shall be
prohibited between the Union and Northern Ireland;273 and placing Union goods on the
market in Northern Ireland shall otherwise be governed by Articles 34 and 36 TFEU.274
By those means, the Union succeeds in protecting the basic integrity of the
Customs Union and Single Market whilst also avoiding a hard border for the movement
of goods across the island of Ireland. But this did involve making some important
compromises. For example, as Weatherill has pointed out, the Union was forced to
qualify its staunch political mantra that the four freedoms of the Single Market must be
regarded as “indivisible”; 275 albeit by reference to an equally important and much-
repeated slogan that the unique challenges for Ireland posed by Brexit call for unique
solutions.276 More significantly, the Union has accepted that an external frontier of the
Customs Union and Single Market will in future be policed by a third country: many of
the Union rules applicable to Northern Ireland will have to be enforced on the ground by
the UK authorities.277 That is an especially noteworthy concession, given that the latter
currently stand accused of failing to tackle serious border fraud as regards the importation
of third country goods into the Single Market.278
However, those British authorities enforcing Union law in Northern Ireland will
be subject to certain forms of Union supervision – including the duty to provide
information on request, the right of Union representatives to be present during relevant
activities and even the power of Union officials to order their UK colleagues to carry out
control measures in individual cases for duly stated reasons.279 Moreover, as regards the
core Union rules made applicable to Northern Ireland by the Protocol,280 the Union’s
institutions, bodies and agencies etc shall exercise those powers conferred upon them by
or under the Treaties. 281 In that regard, the Protocol specifies several particularly

270
Article 13(4) PINI.
271
Article 13(2) PINI.
272
Article 5(5) PINI.
273
Article 5(5) PINI.
274
Article 7(1) PINI.
275
S Weatherill, “The Protocol on Ireland / Northern Ireland: Protecting the EU’s internal market at the
expense of the UK’s” in forthcoming (2020) ELRev Special Issue on the Withdrawal Package.
276
See, e.g. Michel Barnier, Speech at the William J Clinton Leadership Institute (27 January 2020).
277
Article 12(1) PINI. Note a similar acceptance, albeit in a less controversial context, under the Cyprus
Protocol.
278
See Case C-213/19 Commission v United Kingdom (pending). But note Article 5(6) PINI: Union
customs duties collected by the UK are not remitted to the Union; and (subject to Union state aid rules) the
UK may (e.g.) reimburse such duties or compensate undertakings to offset the impact of Union customs
legislation. See also Article 7 PINI on the remission of VAT and excise duties.
279
Articles 12(2)-(3) PINI. Note also Articles 13(5)-(6) PINI on limits to access to Union databases etc /
acting as lead authorities etc by UK authorities.
280
Specifically: Article 5 PINI on customs and goods; Article 7 PINI on technical assessments and
approvals etc; Article 8 PINI on VAT and excise; Article 9 PINI on the Single Electricity Market; Article
10 PINI on state aid; and Article 12(2), second subparagraph PINI on monthly information exchanges as
regards liability to pay customs duties in accordance with Articles 5(1)-(2) PINI.
281
Article 12(4) PINI. Note, in particular, Article 13(1) PINI: Part Six of the treaty shall apply without
prejudice to the provisions of this Protocol.
43

noteworthy features. For example, the relevant Union powers are to be exercised in
relation to the entire UK as well as natural and legal persons resident or established
anywhere in the UK – not just in relation to, or those located in, Northern Ireland itself.
The text also makes particular reference to the jurisdiction of the CJEU – including the
power / duty of all competent UK courts to make preliminary references as regards
relevant provisions of the Protocol and Union law made applicable thereunder.282 In
addition, the relevant acts of competent Union institutions, bodies and agencies etc must
produce the same legal effects for the UK as they do within the Union and its Member
States: poor Brexiters – there really is no escape from direct effect and primacy.283
In the second place, the Protocol also makes provision for Northern Ireland’s
future place within the UK’s own trading system. The starting point is supposedly that
Northern Ireland will form part of the customs territory of the UK;284 and the placing of
goods on the Northern Irish market will take place in accordance with UK law.285 And
indeed: the Johnson Government has repeatedly claimed that, under its “great new Brexit
deal”, there will be no border of any kind down the Irish Sea.286 But those initial
propositions are entirely subject to (and the UK’s official claims are directly contradicted
by) the explicit obligations contained in the Protocol as well as Union law made
applicable to Northern Ireland thereunder.287 The relevant obligations are sufficiently
extensive that Northern Ireland’s position within the UK trading system can at best
politely be described as “complicated”.
To begin with, customs and regulatory checks will indeed take place on trade
between Northern Ireland and Great Britain – something which we were told no British
Prime Minister could ever agree to, because it would destroy the sovereignty and
integrity of the UK.288 On the one hand, trade from Great Britain into Northern Ireland
will be subject to all relevant border checks in accordance with Union customs rules; and
GB goods must be placed on the Northern Irish market in accordance with the applicable
Union legislation.289 The Joint Committee may make recommendations to avoid or
minimise controls at Northern Ireland’s ports and airports. 290 But future EU-UK
regulatory divergence may well mean (for example) that toys manufactured in England or
Scotland, even with no ambition for export beyond the UK, nevertheless still need to be
adapted specifically for the Northern Irish market. On the other hand, as regards trade
from Northern Ireland to Great Britain, the Johnson Government maintained its
predecessor’s promise to guarantee “unfettered market access” to England, Scotland and
Wales.291 Yet the plain text of the Protocol makes it clear that that is not entirely true: the
treaty specifically envisages certain trade restrictions from Northern Ireland to Great

282
See also Articles 12(6)-(7) PINI.
283
Article 12(5) PINI.
284
Article 4 PINI.
285
Article 7(1) PINI.
286
See, e.g. <<https://www.theguardian.com/politics/2019/nov/08/boris-johnson-goods-from-northern-
ireland-to-gb-wont-be-checked-brexit>>.
287
Articles 4 and 7(1) PINI.
288
E.g. Theresa May, Statement on the Salzburg Summit (21 September 2019).
289
See, e.g. M Barnier, Le choix de la responsabilité, le choix du partenariat (European Economic and
Social Committee, 30 October 2019).
290
Article 6(2) PINI.
291
Indeed, in the very text of Article 6(1) PINI. Cp. para 50 of the Joint Report from 8 December 2017.
44

Britain (for example, as regards controlled goods subject to international export

requirements).292 In any case, the UK will still need to know which goods coming from
Northern Ireland are in fact of EU rather than purely domestic origin (for example, so as
to apply UK customs duties in compliance with its WTO obligations).293
The highly specific provisions governing Northern Ireland’s trade with Great
Britain aggravate an already complex and sensitive task: deciding on the future design
and operation of the UK internal market itself.294 Readers may be aware that UK
devolution was only created during and within the context of EU membership. The
devolved authorities have since been promised that Brexit will lead to a significant
increase in their local autonomy.295 Like any other state divided into territories with
independent regulatory powers, the UK now needs to decide which domestic barriers to
trade and distortions of competition are to be considered unacceptable; as well as which
principles, instruments and institutions will ensure the smooth functioning of its own
internal market. Those discussions have already proved controversial and remain as yet
unresolved – not least given the inherent demographic, economic and constitutional
superiority of England over its smaller and more vulnerable partners.296 But the fact that
one of those four territories will automatically be governed by different domestic trade
rules from the others means that the UK internal market will be asymmetrical from the
very moment of its birth.
In addition, recall that Johnson insisted on Northern Ireland being formally
included within the UK customs territory and thus able to share in the aspirant benefits of
an independent UK trade policy (for example, through reduced tariffs on trade with third
countries).297 But as a direct result, Northern Ireland will become subject to two distinct
customs regimes running simultaneously in respect of the same territory. The Protocol
foresees a nightmarish system for determining and administering which goods pay Union
duties, UK duties or no duties at all.298 The presumption is that Union duties should
apply to all goods entering Northern Ireland from outside the Union itself; unless it is
proven (in accordance with more detailed criteria to be adopted by the Joint Committee)
that the relevant goods are not at risk of subsequently being moved into the Union
(whether by themselves or as part of other goods following processing); in which case
they will pay UK duties (if originating from a third country) or no duties (if they come
from Great Britain).299 The Protocol also foresees a system of refunds by the UK

292
Article 6(1) PINI.
293
I.e. the “most favoured nation” principle.
294
See further, e.g. <<https://www.youtube.com/watch?v=kLRMjDUbOA8>>.
295
See, e.g. HMG, The Future Relationship between the United Kingdom and the European Union (Cm
9593, 17 July 2018).
296
See further, e.g. M, Dougan, Briefing Paper on the UK Internal Market for the the Finance and
Constitution Committee of the Scottish Parliament (June 2019) available at <<
https://www.parliament.scot/S5_Finance/Meeting%20Papers/Public(6).pdf>>.
297
Article 4 PINI. Note the widespread suspicion that one of Johnson’s primary motivations in this regard
was to allow the UK Government to avoid infringing the statutory limitations imposed under section 55
Taxation (Cross Border Trade) Act 2018.
298
Article 5 PINI.
299
Article 5 PINI also provides for certain customs exemptions, e.g. the personal property of UK residents;
consignments of negligible value; goods sent between individuals; goods contained in travelers’ personal
baggage.
45

authorities, for example, in respect of goods shown not to have entered the Union.300 The
whole model is reminiscent of the UK’s 2018 Chequers Plan for a “customs partnership”
between the EU and the UK as a whole – proposals which were widely dismissed at the
time as untested and speculative, massively bureaucratic and damaging to
competitiveness. 301 Yet Northern Ireland is now being used as the guinea pig for
precisely such a scheme and risks being left worse off under the Johnson Protocol than it
would have been under the previous backstop proposals from either the Commission or
Theresa May.
In the third place, the Protocol ponders its own anticipated longevity and eventual
mortality. In theory, the entire system will continue to apply, unless and until replaced in
whole or in part by any new EU-UK deal.302 But in practice, that is unlikely to happen,
given the revised preferences of the Johnson Government for the future EU-UK
relationship.303 So in reality, and as the Commission has repeatedly stressed, the border
arrangements contained in the Protocol should be treated as permanent.304 For that
reason, the parties agreed to create not only various dedicated governance tools to help
promote the smooth long-term functioning of the Protocol;305 but also a specific “consent
mechanism” to ensure that the population of Northern Ireland might periodically reaffirm
their willingness to remain subject to the border provisions contained in the Protocol.306
On a rolling basis, commencing four years after the end of the transition period: if the
border regime receives cross-community support within the Northern Irish Assembly, it
will extend for another eight years; if there is a simple majority but without cross-
community support, the relevant Protocol provisions will extend for another four years;
whereas in the event of non-consent, the border arrangements will cease to apply after a
further two years of operation.307 In effect, for as long as they remain within the UK, and
for as long as the latter remains outside the EU, the Northern Irish get to decide whether
they would rather have a hard border than continue to live with the Protocol.
3.4.5. The Irish border: Risks and prospects
The Good Friday Agreement was meant to bring relative stability to Northern Ireland –
offering time and space for divisions to heal and differences to soften. After the 2016
referendum, anything but the softest of soft Brexits was bound to be a problem for the

300
Article 5(6) PINI.
301
July 2018).
302
Article 13(8) PINI.
303
304
E.g. M Barnier, Remarks at the press conference on the Commission Recommendation to the European
Council to endorse the agreement reached on the revised Protocol on Ireland/Northern Ireland and revised
Political Declaration (17 October 2019). In particular, note the deletion, from the final version of the
Protocol, of original Articles 1(4), 2-3 and 20 PINI as agreed in November 2018 (which stressed the purely
temporary nature of the “backstop” provisions): see OJ [2019] C 66 I.
305
Article 14 PINI (specialised committee) and Article 15 PINI (joint consultative working group).
306
Specifically: Articles 5-10 PINI.
307
See the detailed provisions contained in Article 18 PINI. See also HMG, Declaration concerning the
operation of the “Democratic Consent in Northern Ireland” Provision of the Protocol on Ireland/Northern
Ireland (19 October 2019). Cp. the original consent provisions contained in para 50 of the Joint Report
from 8 December 2017.
46

island of Ireland. Now that the Johnson Government is determined to pursue a hard
Brexit (deal or no deal), the challenges facing the North and the Republic are
considerably worse. The common hope is that the revised Protocol will provide a
credible and durable solution to the Irish border problem that not only protects the peace
in Northern Ireland, but also respects the Union’s customs and regulatory concerns, while
also satisfying the UK’s demand for an independent trade policy.
But the Protocol contains considerable economic risks for every relevant
party.308 The Union’s own borders will be policed by a third country which has already
proven itself to be unreliable in that task and whose Government insists on making
misleading statements about its own obligations under its own Withdrawal Agreement.
The UK itself now faces significant uncertainty and disruption within its fledgling
internal market, whose ongoing design and future operation are already marked by
difficult tensions with Wales and especially Scotland. For Northern Ireland itself,
political salesmen like to claim that it will soon occupy a uniquely privileged position,
enjoying the best of both worlds by straddling the EU and UK markets – but in reality,
the Protocol is based on the experiment of a dual customs regime, once dismissed even
by Johnson and his allies as damaging and unworkable.
Nor should one overlook the fact that the Protocol is already damaging political
stability within Northern Ireland. In the trade barriers that will soon exist across the Irish
Sea, unionists perceive a serious threat to their British identity. Among nationalists,
Brexit in general and the Protocol in particular have rekindled dreams of Irish
reunification far sooner than many had ever expected. It should be a cause of serious
concern that the Protocol effectively reduces the collective incentive to make the Good
Friday Agreement work, at the same time as rekindling rather than defusing the poison of
sectarian and identity politics.
Even a small risk that the Protocol system may simply break down is still too high
– not least since every other pathway leading away from such a scenario would only
present even greater problems of its own. For example: what would we do, if the Union
were effectively forced to impose a hard border across the island of Ireland, so as to
protect its own Customs Union and Single Market, faced with the intolerable provocation
of a British government that simply refuses to respect and enforce the terms of its own
agreement and shows little concern about the impact of its own behaviour upon Northern
Ireland? An unlikely, yet not entirely fanciful prospect. Would a better solution to the
entire problem of Brexit and the difficulties of the revised Protocol really lie (as many
now believe) in a border poll leading to Irish reunification within the Union? An entirely
possible, yet still not straightforward outcome. After all, there are also significant
dangers in a premature push for reunification, before both main communities feel
genuinely comfortable at the idea, and until we are sure that the Republic itself is willing
and able to handle the consequences of such a momentous event.

308
Even allowing for the various safeguard clauses contained in the Protocol: see Articles 13(7), 16 and 17
PINI.
47

4. The Future Relationship
The future EU-UK relationship is currently under negotiation.309 Once more concrete
terms emerge, they will doubtless provide the subject for extensive analysis. For present
purposes, it must suffice to highlight some of the key constraints, preferences and choices
that have already shaped the negotiations and will influence their eventual outcomes.
4.1. Context of and background to the Political Declaration
The common experience of humanity provides us with a familiar agenda for international
cooperation in fields such as trade and security – a closely inter-related bundle of
decisions to be made about the overall level of ambition the parties are willing to pursue;
the specific legal instruments they are willing to employ to pursue that goal; an
appropriate and commensurate range of ancillary or flanking policies and safeguards; the
institutional structures and processes that will operationalise the agreement; the principles
and disciplines governing its interpretation, application and enforcement. Likewise,
experience has taught us various empirical lessons about the likely challenges facing
negotiations aimed at closer international cooperation: for example, that integrating
markets for services is significantly more difficult than for goods; that geography matters,
insofar as greater proximity increases the opportunities for and intensity of trade
relations; that size matters, since larger players simply bring greater economic and
political clout to the table; that the parties’ willingness to create effective institutions is
central to any genuinely ambitious agreement.310
Future EU-UK relations will not be magically exempt from that agenda and those
lessons. In addition, however, both parties must live with several inescapable features of
the EU constitutional order concerning the conduct of external relations: for example, the
complex division of competences between the Union and its Member States, including
the possibility of mixity, which then precipitates national as well as Union level
ratification; 311 the non-derogable principles developed by the CJEU to protect the
autonomy of the EU legal system from any possibility of external interference by third
countries or other international bodies; 312 and the particular status of international
agreements within the Union legal order itself, which creates a strong knock-on pressure
to ensure reciprocity of internal legal effects (either by levelling-up or by levelling-down)
with the Union’s international partners.313 It is worth noting that the UK itself lacks
many comparable constitutional constraints: whatever conventions or statutes might
currently apply to the conduct of international relations or conclusion of international
agreements, as regards the division of labour between executive and legislature, or
between the central and devolved authorities, are easily overcome or overturned by a

309
See Terms of Reference on the UK-EU Future Relationship Negotiations (28 February 2020).
310
See further, e.g. M Dougan, The Institutional Consequences of a Bespoke Agreement with the UK Based
on a “Close Cooperation” Model (Research Study commissioned by the European Parliament, Policy
Department for Citizens’ Rights and Constitutional Affairs, at the request of the Constitutional Affairs
Committee: PE 604.962, May 2018).
311
Recently, e.g. Opinion 2/15, Singapore Agreement, C:2017:376; Case C-600/14, Germany v Council,
C:2017:935.
312
Recently, e.g. Opinion 2/13, Accession to ECHR, C:2014:2454; Opinion 1/17, CETA, C:2019:341.
313
I.e. in the light of the caselaw based on Case 12/86, Demirel, C:1987:400.
48

London Government with a working Commons majority. 314 The UK’s negotiating
partners need only really worry about the implications for reciprocity of the dualist nature
of its domestic legal order.
Against that background, the European Council articulated its overall position
towards future relations with the UK in its guidelines from April 2017,315 as well as in
additional guidelines adopted in March 2018.316 As we have seen, the Union desires a
close partnership with the UK, but not at any cost: preserving the integrity of the Union’s
own policy ecosystems is paramount; in particular: the Union will not allow “cherry-
picking” from within the Single Market. Furthermore, the Union insists upon a fair
balance of rights and obligations: for example, robust level playing field commitments so
as to ensure free and fair competition between the Union and UK markets; as well as
various human rights and data protection guarantees as a precondition for cross-border
cooperation between police and security forces as well as in the sphere of criminal
justice.
However, and as one might by now expect, the UK debate took place almost
regardless of those legal and political realities. The Leave campaign never properly
defined its vision for the future, preferring instead to make entirely fantastical and
mutually contradictory promises in order to win the referendum. Yet the basic choice
facing Brexit Britain was simple. Either the UK could aim for a relatively close future
relationship with the Union: that would minimise disruption in fields such as trade and
security; and also make the Irish border problem less difficult to manage as part of a UK-
wide settlement; but it would come at the price of the UK aligning itself to the Union and
its regulatory standards without exercising any appreciable degree of influence. Or the
UK could settle for a relatively distant future relationship with the Union: that might
appear to tally with the political slogan of “taking back control” (and offer the Leave
Right greater freedom to depart from the hated European economic and social model);
but it would come at the cost of much greater dislocation in fields such as trade and
security; and also increase the pressure to address the Irish border problem by treating
Northern Ireland very differently from the rest of the UK. However, since its very
survival depended precisely on obscuring and avoiding that very choice, the May
Government maintained its official “cake and eat it” policy for as long as possible: the
British desired a deep and special partnership, in which the UK retained many of the
benefits of Union membership, but without having to accept the corresponding
obligations.317
That façade cracked upon publication of the Chequers Plan in July 2018.318 When
the May Government was eventually forced to choose, the original Political Declaration

314
As the experience of section 13 European Union (Withdrawal) Act 2018, repealed by section 31
European Union (Withdrawal Agreement) Act 2020, so vividly demonstrates.
315
European Council (Art 50), Guidelines of 29 April 2017.
316
European Council (Art 50), Guidelines of 23 March 2018. See also European Council (Art 50),
Conclusions of 25 November 2018 and 13 December 2019.
317
In particular: HMG, The United Kingdom’s exit from and new partnership with the European Union
(Cm 9417, 2 February 2017). Also, e.g. David Davis, Speech on foundations of the future economic
partnership (20 February 2018); Theresa May, Speech on our future economic partnership with the EU (2
March 2018); Chancellor, HSBC Speech: Financial Services (7 March 2018).
318
July 2018).
49

of November 2018 effectively prioritised minimising EU-UK trade disruption and finding
a UK-wide solution to the Irish border problem (at least in the short and medium term):319
on its face, the parties envisaged only a relatively distant future EU-UK relationship, for
example, with the UK entirely outside the Customs Union and the Single Market, albeit
willing to consider alignment with Union rules across various sectors; but the “Irish
backstop” contained in the corresponding version of the Withdrawal Agreement meant
that, in reality, the UK would remain much more closely linked to the EU in a wide range
of policy fields for at least the foreseeable future. 320 However, when the Johnson
Government came to renegotiate the Withdrawal Package, it brought a very different set
of priorities to the table: “taking back control” demanded that a genuinely distant future
EU-UK relationship be put in place as soon as possible, so that the UK could exercise its
freedom to diverge from Union regulatory standards and embark upon its “Global
Britain” trade policy; significant dislocation and disruption in existing trade and security
relations, as well as the legal and economic segregation of Northern Ireland from the rest
of the UK internal market, were prices worth paying to realise that objective. The
Political Declaration was therefore redrafted to dilute still further the ambition for future
EU-UK relations;321 and the Protocol on Ireland/Northern Ireland was revised to ensure
that the Irish border problem did not stand in Johnson’s way.322
4.2. Revised Political Declaration of October 2019: key points
The Political Declaration states that the future EU-UK relationship will be based on a
balance of rights and obligations, taking into account the principles of each party: for the
Union, protecting the autonomy of its own decision making, respecting the integrity of
the Single Market / Customs Union and upholding the indivisibility of the four freedoms;
for the UK, respecting its sovereignty, protecting its own internal market, the
development of an independent trade policy and ending the free movement of people.
The future relationship needs to take account of the unique context of EU-UK relations:
while it cannot amount to the rights or obligations of Union membership, it should still be
approached with high ambition as regards its scope and depth.
The future relationship should be underpinned by shared values – including the
UK’s continued commitment to respect the ECHR. Given the overall importance of data
flows to the future relationship, the Commission will assess the UK’s data protection
standards with a view to adopting an adequacy decision (in accordance with existing
Union law) before 2021. The UK will do the same under its own regulatory framework.
The parties will also establish general terms and conditions for UK participation (in
accordance with applicable Union legislation) in a range of Union programmes; as well
as working together on other joint initiatives such as renewed funding for peace and
reconciliation in Northern Ireland; and exploring other options such as the UK’s future
relationship with the European Investment Bank Group.
However, the bulk of the Political Declaration is dedicated to two main topics. In
the first place, an economic partnership between the Union and the UK – based on a Free

319
As published in OJ 2019 C 66 I/185.
320
321
As published in OJ 2019 C 384 I/178.
322
50

Trade Agreement and wider sectoral cooperation. Space precludes us from doing more
than highlighting a few key points. In the field of goods, the parties will form separate
customs and regulatory territories, but will aim for no tariffs or quantitative restrictions
across all sectors, and to engage in customs and regulatory cooperation with a view to
minimising trade barriers. As regards services, the parties will negotiate provisions on
market access and national treatment under host state rules, together with arrangements
on the temporary entry and stay of natural persons for business purposes, and possibly
also rules to govern the mutual recognition of certain professional qualifications. When it
comes to financial services in particular, the Union will assess the UK’s regulatory and
supervisory regimes with a view to adopting equivalency decisions (in accordance with
existing Union legislation) before July 2020. The UK will do the same under its own
regulatory framework.
There are also more detailed provisions for other specific sectors, for example:
digital, intellectual property, public procurement, transport, energy, global cooperation in
fields such as environmental protection and financial stability. Several sections are of
particular note. For example, the Political Declaration reflects the UK’s low future
tolerance for the mobility of people (other than with Ireland): the parties should simply
aim for reciprocal visa-free travel for short-term visits, possibly also arrangements on
entry and stays for research and study, maybe some cross-border social security
coordination and judicial cooperation in family law. Another example concerns fisheries:
the parties will cooperate in bilateral and international fora to ensure sustainable fishing
and protect the marine environment, including the management of shared stocks; together
with a new agreement covering access to waters and quota shares – using best endeavours
to reach such an agreement by July 2020, so it can provide the basis for determining
fishing opportunities after expiry of the transition period.
Central to the economic partnership provisions of the Political Declaration is the
section on a level playing field. The original version as agreed by the May Government
provided that the future relationship should include provisions on state aid, competition,
employment and environmental standards and relevant tax matters – but building on the
corresponding arrangements provided for in the Withdrawal Agreement, in particular, the
alignment obligations contained in the UK-wide “Irish backstop”. 323 However, the
revised Political Declaration now states that the future relationship should encompass
robust commitments to prevent distortions of trade and unfair competitive advantages –
to which end, the parties should uphold the common high standards applicable in the
Union and the UK at the end of the transition period in the areas of state aid, competition,
employment and environmental standards and relevant tax matters, i.e. a less onerous but
still important non-regression commitment.324
In the second place, the Political Declaration also devotes considerable attention
to a security partnership between the Union and the UK. Again, space precludes us from
doing more than highlighting a few key points. As regards EU-UK cooperation in
criminal matters, the parties desire a comprehensive, close, balanced and reciprocal
system of cooperation – but reflecting the commitments the UK is willing to make as
regards (for example) regulatory alignment, dispute settlement and enforcement; and
taking into account the fact that the UK will be a non-Schengen third country that does

323
OJ 2019 C 66 I/185, para 79.
324
OJ 2019 C 384 I/178, para 77.
51

not provide for the free movement of persons. On that basis, the security partnership will
address: EU-UK data exchanges, including in fields such as passenger name records and
the Prüm system; operational cooperation between law enforcement authorities and cross-
border judicial cooperation in criminal matters; and cooperation as regards money-
laundering and terrorist financing. The Political Declaration also describes the parties’
aspirations in the fields of foreign policy, security and defence: flexible and scalable
cooperation; including appropriate mechanisms for dialogue, consultation, coordination
and exchange of information. Particular provisions address issues such as: sanctions; UK
participation in CSDP missions and operations; UK collaboration in the development of
European defence capabilities; thematic cooperation in fields such as cyber-security,
illegal migration and counter-terrorism; and the need for agreements on the protection of
classified and sensitive information.
The Political Declaration also sketches out the parties’ thinking about the
structure and governance of their future relationship. The precise legal form will be
determined in due course, but should include an overarching institutional framework,
which could take the form of an association agreement, while allowing for more specific
governance arrangements in particular areas. As well as dialogue at appropriate levels to
provide strategic direction and discuss thematic cooperation, the parties will also support
inter-parliamentary and encourage civil society dialogues. But as usual, the core
governance institution will be a Joint Committee; the parties will seek to ensure
consistent interpretation and application of their agreements; dispute settlement as
necessary through an independent arbitration panel; a preliminary reference system so as
to protect the CJEU’s exclusive jurisdiction over the binding interpretation of Union law;
and a system of sanctions for non-compliance as well as general safeguards and
rebalancing measures.
4.3. Post-Withdrawal Negotiating Positions
The Political Declaration is not intended to be legally binding or enforceable: it is a good

faith expression of the parties’ common political understanding, which “accompanies”
the Withdrawal Agreement and is intended to provide the basis for subsequent formal
negotiations.325 The latter might well produce a new agreement on the future EU-UK
relationship, either similar to or indeed very different from that envisaged in the Political
Declaration itself. Equally, the talks could well lead to no successful outcome; or
produce only a very limited set of future arrangements. Moreover, the Political
Declaration is in many places so sketchy and vague that it effectively offers no more than
a basic checklist for the negotiating agenda, but can hardly be said to provide a
meaningful guide to what the parties even intended let alone what they might ultimately
achieve.326
Article 184 WA provides that the Union and the UK shall use their best
endeavours in good faith to negotiate and ratify the agreements governing their future
relationship with a view to their application from the end of the transition period –
permitting that crucial “single regulatory change” which would at least lessen the

325
OJ 2019 C 384 I/178, para 1.
326
E.g. OJ 2019 C 384 I/178, para 105: “[t]he Parties should consider appropriate arrangements for
cooperation on space”.
52

disruption caused by Brexit. To help realise that exceptionally ambitious timetable, the
Political Declaration proposes that parallel negotiations covering the various strands of
the future relationship should begin as soon as possible after the UK’s formal withdrawal
and that a high level meeting should convene in June 2020 to take stock of progress – no
doubt taking account the deadline by which the Joint Committee may agree a one-off
extension to the transition period in accordance with Article 132 WA.327
The Council adopted the Commission’s formal negotiating mandate on 25
February 2020. 328 It contains no great surprises – largely following the European
Council’s previous guidelines from April 2017 and March 2018 as well as the terms of
the revised Political Declaration as approved in October 2019. For its part, the UK
published a parliamentary statement about its negotiating objectives on 3 February 2020
which made clear that the Government did not regard itself even as morally bound to
respect the terms of its own revised Political Declaration: Johnson here revives his tired
“cake and eat it” act (for example) by peddling the fantasy that the UK should enjoy full
tariff-free access to the Single Market without having to undertake anything more than
the minimal level playing field commitments contained in standard free trade agreements;
but essentially, the UK Government now proposes an extreme form of “clean break
Brexit” which rejects any form of regulatory alignment with the EU, any form of
supranational control over UK law in any area, or any constraint upon the future
autonomy of the UK legal system in any way.329 When more details were released a few
weeks later, in the UK’s official “Approach to Negotiations”, it became clear that the UK
was indeed intent on pursuing an even more distant model of future relations with the
Union (if indeed it had any genuine intention of reaching any serious agreement at all).330
The UK position as set out in February 2020 is not only a significant departure
from the revised Political Declaration, but also light years away from the Union’s
negotiating mandate in a variety of important respects.331
First and foremost, the parties are embarking from very different (almost
philosophical) starting points. On the one hand, the Union regards its future relationship
with the UK as of particular importance in terms of trade, security and strategic interests:
the UK may be a third country, but it is in a unique situation relative to the Union – for a
wide range of historical, geographical, demographic, economic and political reasons –
which together call for an especially close relationship, not only in terms of privileges but
also regards obligations. On the other hand, the Johnson Government regards the EU-UK
relationship almost with indifference – merely one component in the grand designs of
“Global Britain”: trade can be conducted on terms similar to that offered to Canada or
Japan; other interests can be managed through more ad hoc arrangements if indeed there

327
See Section 3.2 (above).
328
Council Decision authorising the opening of negotiations with the United Kingdom for a new
partnership agreement (25 February 2020).
329
HMG, Written Statement to Parliament: The Future Relationship between the UK and the EU (3
February 2020).
330
HMG, The Future Relationship with the EU: The UK’s Approach to Negotiations (CP211, 27 February
2020).
331
There are many other detailed issues on which the parties’ public positions already reveal actual or
potential divergences: e.g. the inclusion of audiovisual services; the protection of geographical indications
of origin; the withdrawal of autonomous equivalency decisions as regards financial services; the treatment
of Gibraltar.
53

need to be any at all; nothing and nobody can intrude upon the sovereignty of the UK
once it “fully recover[s] its economic and political independence”.332 Indeed, if anything,
we would do well to bear in mind that a substantial proportion of the UK’s current ruling
party are ideologically hostile to the Union’s very existence: far from seeing these
negotiations as the route to maintaining close and friendly cooperation, they measure the
success of their beloved Brexit only relative to the damage it might inflict, and that they
can blame, on the despised “EUSSR”.333
Secondly, the UK has thrown the very scope and structure of the future
relationship entirely into the air. Whereas the EU bases its mandate on the vision of an
overall institutional framework plus broad economic and security partnerships as agreed
in October 2019, the Johnson Government now rejects the idea of any such
comprehensive framework. Instead, the UK proposes only a free trade agreement;
together with a series of more limited and entirely separate agreements on specific issues
(providing for cooperation in sectors such as air transport, energy, nuclear and law
enforcement / criminal justice). The concept of a distinct security partnership (including
any particular provisions on foreign policy, security or defence) simply disappears.334
And the UK shows no particular interest in any more general expression of common
values; in institutionalised structures to engage in overall strategic discussions; or in
regular opportunities for dialogue on matters of mutual interest. Indeed, the UK has
remarkably little to say at all on the entire subject of governance – concentrating its
energy on repeatedly asserting the importance of its own untrammelled sovereignty.335
Thirdly, even within the economic partnership / free trade agreement, the two
parties are simply diametrically opposed on the central question of the nature of a level
playing field to guarantee free and fair competition. The Union takes the Political
Declaration as its starting point but significantly fleshes out the implications and
expectations. In fields such as employment and the environment, the parties should
uphold Union standards as they stand at the end of transition; but there should also be a
mechanism for raising standards over time – using Union law as a reference point and
with an additional commitment to non-regression for the purposes of encouraging trade /
investment; 336 and the Union should be able to take autonomous measures to react
quickly against relevant disruptions in competition. In the realm of state aid, the
Commission’s mandate goes even further: Union law should apply to and in the UK on a
dynamic basis, enforced by an independent UK authority working closely with the
Commission, and amenable to dispute settlement through arbitration (thus subject also to
CJEU jurisdiction). In stark contrast, the UK entirely downplays the importance of the
level playing field and renounces the approach agreed in the Political Declaration: the

332
2020), para 2.
333
It is worth recalling that, during the 2016 referendum campaign, Johnson compared the EU to Nazi
Germany: see, e.g. <<https://www.politico.eu/article/boris-johnson-compares-eu-to-nazi-superstate-brexit-
ukip/>>.
334
Other important topics are barely mentioned either, e.g. public procurement; rail and maritime transport;
global cooperation; money-laundering and terrorist financing; cyber-security.
335
2020), especially paras 4-8 and 83.
336
In line with other recent Union FTAs, e.g. Article 12.1(3) EU-Singapore Agreement; Article 16.2(2)
EU-Japan Agreement; Article 23.4 EU-Canada Agreement.
54

UK will enact its own state aid regime and disputes over its application should not be
amenable to dispute settlement under the agreement; similarly, the UK’s autonomous
standards on employment and environmental protection should merely be subject to a
non-regression duty on grounds of encouraging trade / investment.
Fourthly, an equally wide chasm separates the parties over the vexed question of
fisheries. Besides cooperation over the conservation and management of fish stocks, the
Union’s primary objective is to maintain the status quo as regards reciprocal access to
waters and the allocation of quota shares, so as to avoid economic dislocation for Union
fishermen that have carried out activities in UK seas – explicitly linking the conclusion of
such an agreement to the conditions for / extent of UK access to the Single Market.
However, the UK wants trade in fisheries products to be dealt with under the proposed
FTA, with an entirely separate agreement on access to waters and cooperation on
conservation and management issues – based on annual negotiations; rejecting the
relative stability mechanism as employed under Union law; and with heavy emphasis on
combatting illegal fishing activities.
Fifthly, major divergences in approach are apparent not only as regards the
content of the economic partnership, but also in the field of security cooperation. For
example, the Union insists that, as part of the essential conditions that underpin their
entire future relationship, the UK must uphold existing human rights commitments as
provided for under the ECHR. In the context of the proposed security partnership, the
Commission’s mandate goes even further: should the UK denounce the ECHR, the
provisions on law enforcement cooperation and judicial cooperation in criminal matters
should be automatically terminated; while if the UK were to change its domestic law so
as to deprive the ECHR of direct internal legal effects, those same provisions should be
automatically suspended. The UK Government once again takes a highly sovereigntist
approach: its more narrow agreement on security cooperation must not constrain the
UK’s autonomy in any way, including by specifying how the UK should protect human
rights within its own legal system; though the treaty should include a general and
unrestricted power for either party to suspend or terminate its provisions in whole or in
part.
Last but far from least, the parties hold very different views on the timescales for
negotiating their future partnership. While the EU continues both to stress the difficulty
of achieving agreement before the end of 2020 and to highlight the possibility of
extending the transition period in accordance with Article 132 WA, the UK Government
has declared itself absolutely adamant that there will be no such extension under any
circumstances – not only in its general election manifesto,337 but also in major policy
statements since December 2019, 338 and indeed explicitly enshrined in primary
legislation.339 Thus, the transition period looks set to expire on 31 December 2020 and
the new EU-UK relationship will commence on the basis of whatever happens to be in
place after that date. For the UK: if that means “no deal” (now disingenuously described

337
According to the Conservative Manifesto 2019: “[w]e will negotiate a trade agreement next year…
and we will not extend the implementation period beyond December 2020”.
338
E.g. HMG, The Future Relationship with the EU: The UK’s Approach to Negotiations (CP211, 27
February 2020) para 9.
339
See section 15A European Union (Withdrawal) Act 2018 as amended by section 33 European Union
(Withdrawal Agreement) Act 2020.
55

as an “Australia-style” Brexit) then so be it. Indeed, in its “Approach to Negotiations”,

the Johnson Government declares that, if the June 2020 stock-take cannot identify the
broad outlines of an agreement that is capable of being finalised by September 2020, the
UK may well walk away from further talks altogether.340
Of course, and particularly given the sweeping distance separating the parties as
revealed in their respective negotiating mandate / approach, there seems scant chance that
such enormous, complex and sensitive negotiations will be progressed and completed
within such short timescales and deadlines – even without making due allowance for the
possibility of judicial action before the CJEU about the compatibility of any proposed
agreement with Union law;341 and for the potential requirement that any mixed agreement
may call also for Member State ratifications.342 Even on the most optimistic assessment:
if a deal is done, on terms acceptable to both parties, in time for entry into force in 2021,
it would involve such a transformation / downgrading in EU-UK relations that (for many
sectors and actors) there may as well be no deal at all. But it seems far more likely that
negotiating time will run out and the transition period will expire with no significant /
comprehensive agreement in place – in which case, Johnson’s hard right supporters will
have succeeded in procuring the “hard Brexit” they had always hoped for. And even if a
deal does eventually emerge at some later point down the line, that will only mean “two
regulatory changes” – something the transition period and the possibility of extension
were precisely designed to avoid.343
4.4. Prospects for future EU-UK relations
On paper, Boris Johnson may have “got Brexit done”: the UK is no longer a Member
State of the European Union. But in practice, many of the real questions about future
relations between the UK and the EU remain to be settled.
On the one hand, it might fairly be said that the UK Government under Boris
Johnson finally pulled itself free of the excruciating period when leading Leave
campaigners, and then the administration of Theresa May, promised all things to all
people and either believed or pretended that that could ever possibly happen in reality.
The current UK position on future relations with the EU is at least possessed of greater
internal coherence and demonstrates a higher level of political realism.
On the other hand, the cost of such clarity is that the UK Government is driving
headlong towards a serious rupture in relations with the EU – a far cry from many of the
Leave promises made back in 2016 and repeated consistently thereafter – and crucially,
that will be true regardless of whether there is a deal or whether there is none. The
British decision to rule out any transitional extension only exacerbates the situation by
making “two regulatory changes” more likely in due course. And of course, there
remains a shocking contradiction between Johnson’s propaganda about “Global Britain”

340
2020), para 9.
341
In accordance with Article 218(11) TFEU.
342
The legal basis of any EU-UK agreement, the balance of competence between the Union, and the
Member States and the possible need for national ratifications, are all left to be determined in due course:
see Commission, Future EU-UK Partnership: Questions and Answers on the Negotiating Directives (25
February 2020).
343
56

as the champion of free trade versus the reality of a Government poised to commit the
single gravest act of economic segregation in modern history.
Besides the damage which will inevitably flow from the UK’s decision
deliberately to dislocate and distance itself from the Union, that choice also has various
important internal consequences for the UK itself: for example, the customs tensions
affecting Northern Ireland will only grow in proportion to the degree of Great Britain’s
divergence from Union law; and the same is true as regards the management of internal
trade between England, Scotland and Wales. But most of all: why is the Johnson
Government so obsessed with the power to diverge from Union regulatory standards,
many of which are only minimum in nature and do not prevent the UK from pursuing
higher levels of protection? Perhaps “taking back control” is just an exercise in
nationalist political rhetoric. But it seems more likely that the Tories do indeed harbour
dream of dismantling the UK’s adherence to Europe’s distinctive socio-economic model.
Moreover, the UK’s increasingly abrasive approach to the future relationship also
poses serious challenges for the EU itself. Above all: the risk of an aggressive competitor
on our very doorstep, actively undertaking market deregulation and encouraging social
dumping as an alternative economic model; as well as constantly engaging in attempts to
undermine the political unity and solidarity of the Member States. Even looking beyond
the current generation of Tory politicians in office: the further and harder the UK does
drift away from the European fold, the more difficult life will eventually be, even for a
new administration more sympathetic to close relations with or indeed renewed
membership of the Union. But in the meantime, we should continue firmly to locate the
debate on future EU-UK relations within the wider geo-political landscape currently
afflicting the developed world: the UK Tories are now fully converted to the cause of
hard right, post-truth populism, in international cahoots with their equally dangerous
allies in the likes of Trump’s USA and Bolsonaro’s Brazil. Until the present crisis passes
or at least recedes, the Union and its friends are effectively acting in existential defence
of liberal social market democracy – and that point should never drift far from the minds
of those responsible for negotiations with the UK.
5. Concluding Remarks
The UK’s Withdrawal Package is the product of certain empirical facts, as well as
various constitutional and legal constraints, together with myriad political choices – many
of which, particularly those originating in the corridors of Westminster and Whitehall,
only made an already challenging situation even more difficult to manage. The
Withdrawal Agreement has its strengths – not least in providing a much higher degree of
certainty compared to the confusion and disruption that would otherwise have
accompanied an entirely unilateral UK departure from the Union. But the Withdrawal
Agreement also has its weaknesses – particularly as regards the often formalistic and in
many respects limited protection afforded to migrant citizens; as well as the complex and
potentially unstable settlement forced upon Northern Ireland at the insistence of the
Johnson Government. As for the Political Declaration: it took only a few weeks for its
true value to be revealed, as the UK set about systematically back-pedaling from many of
the commitments and aspirations already agreed with the Union. And whatever new
treaties are concluded in due course between the Union and the UK, the Johnson
57

Government appears determined to force through a far-reaching rupture in their political,

economic, social, cultural and legal relations.
The triumph of post-truth political populism that brought about the dramatic
demise of the UK as a leading power within the world’s largest alliance of liberal social
market democracies is a tragic and cautionary tale from which the Union and its Member
States must learn some serious lessons – about the dangers posed by rampant Europhobic
propaganda and delusional nationalist fantasies, as well as the risks of pandering to
political extremists who will never be satisfied, but only grow more demanding with
every concession and more confident with every victory.
But lawyers can always console themselves with the fact that even the bleakest of
tragedies always manage to generate novel legal phenomena and fresh avenues for
scholarly research. We now have an entire branch of Union law that barely existed
before – the law of withdrawal – even if it is a field we hope never to study again.
Whatever the outcome of the future partnership negotiations, we will certainly have a
new frontier of EU external relations to explore. And sooner or later, we might have an
interesting set of accession challenges to ponder, as and when a future generation of
British (or Scottish) Europeans manage to steer the UK (or an independent Alba) back
towards the Union mainstream. In the meantime, Brexit has forced us all to address some
vitally important questions – not least: what does it really mean, to be a Member State of
the European Union, and why should we regard membership as both special and
valuable? And of course, the UK’s departure will also profoundly affect the internal
dynamics of the Union – not only its institutions, but also their interaction with the
Member States, as well as relations between the Member States themselves. Having
taken back control from the British, after a lifetime of their threats to veto and obstruct,
the Union will now evolve according to the wishes of the 27 – and when the UK finally
returns to its senses, it will have to consider rejoining whatever the Union has decided to
make of itself, for itself.
58

Michael Dougan : So Long, Farewell, Auf Wiedersehen, Goodbye: The UK's Withdrawal Package

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Michael Dougan : So Long, Farewell, Auf Wiedersehen, Goodbye: The UK's Withdrawal Package

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Paper submitted to Common Market Law Review for peer review (March 2020).

Subject to further revision and correction in due course.

So Long, Farewell, Auf Wiedersehen, Goodbye: The UK’s Withdrawal Package

Or should that be “good luck”?

2. Legal and Political Context of the Withdrawal Package

Electronic copy available at: https://ssrn.com/abstract=3553407

Electronic copy available at: https://ssrn.com/abstract=3553407

2.1. The EU’s negotiating position under Article 50 TEU

2.1.1. Institutional roles and responsibilities

The UK delivered its formal notification of intention to withdraw on 29 March 2017.12 In

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discussions proceeded. 18 Ultimately, Article 50 TEU provides that any withdrawal

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2.1.2. The European Council’s “core principles”

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Electronic copy available at: https://ssrn.com/abstract=3553407

2.2. Legal and political factors affecting the UK

2.2.1. An unorthodox allocation of institutional responsibilities

Electronic copy available at: https://ssrn.com/abstract=3553407

However, at an early stage in the withdrawal process, even the UK Government

2.2.2. An unusual degree of political instability and incoherence

Electronic copy available at: https://ssrn.com/abstract=3553407

Electronic copy available at: https://ssrn.com/abstract=3553407

Electronic copy available at: https://ssrn.com/abstract=3553407

Electronic copy available at: https://ssrn.com/abstract=3553407

2.4. Scope, sequencing and timing of the negotiations

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Electronic copy available at: https://ssrn.com/abstract=3553407

Electronic copy available at: https://ssrn.com/abstract=3553407

Electronic copy available at: https://ssrn.com/abstract=3553407

3. The Withdrawal Agreement

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3.1.1. Interpretation of the Withdrawal Agreement by the Parties

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3.1.2. Dispute Settlement and Enforcement under the Withdrawal Agreement

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Electronic copy available at: https://ssrn.com/abstract=3553407

3.1.3. Internal Legal Effects of the Withdrawal Agreement

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3.2. Transition period

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3.2.1. Main provisions on transition

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Committee enjoys no power of adaptation or exemption as regards transitional

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entitled to submit proposals, initiatives or requests as if it were still a Member State.150

3.2.2. Objectives of transition and likelihood of their delivery

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Electronic copy available at: https://ssrn.com/abstract=3553407

3.2.3. Other legal and political controversies associated with transition

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Electronic copy available at: https://ssrn.com/abstract=3553407

3.2.4. At the end of transition

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3.3. Citizens Rights

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The UK Government resisted repeated parliamentary calls for the UK to offer

3.3.1. EU law as the general baseline for citizens’ rights protection

Electronic copy available at: https://ssrn.com/abstract=3553407