The Irish Border

This chapter focuses on Northern Ireland, a jurisdiction within the UK acutely affected by the nature of the Brexit debate and the process. It is a contested region that is divided along ethno-national lines and still emerging from a violent conflict. Removing Northern Ireland from the EU against its wishes will have long-term consequences that remain difficult to predict. One result is a more intense discussion of the region’s place within the UK, with Irish reunification acknowledged to be a way to return to the EU. The chapter then analyses the Protocol on Ireland/Northern Ireland attached to the Withdrawal Agreement which regulates the single most controversial issue in the Brexit process: namely, the Irish border question. It looks at the difficulties connected to the fragile peace process in Northern Ireland and explains the creative solution that was ultimately agreed in the withdrawal treaty to prevent the return of a hard border in the island of Ireland through regulatory alignment, while also indicating the challenges that the Protocol creates.

The Ratifications

This chapter assesses the ratification of the Withdrawal Agreement by clarifying the means by which the UK and the EU gave effect to the exit treaty. It begins by looking at the ratification and legal implementation from the UK legal perspective. The UK is a dualist country as regards the relation between treaties and UK law. A treaty may therefore bind the UK at the international level, but will have no effect in UK domestic law unless and until it is ratified and incorporated into UK law via statute. The chapter sets out the foundational principles concerning dualism and explains the process through which the UK implemented the Withdrawal Agreement so as to satisfy the dualist precept. It also considers the interconnection between the EU Withdrawal Act 2018 and the EU Withdrawal Agreement Act 2020. The chapter then examines the ratification and its legal consequences from the EU perspective.

Introduction

This introductory chapter provides an overview of the Withdrawal Agreement of the United Kingdom (UK) from the European Union (EU). The Withdrawal Agreement, adopted on the basis of Article 50 Treaty on European Union (TEU), spells out the terms and conditions of the UK departure from the EU, including ground-breaking solutions to deal with the thorniest issues which emerged in the context of the withdrawal negotiations. Admittedly, the Withdrawal Agreement is only a part of the Brexit deal. The Agreement, in fact, is accompanied by a connected political declaration, which outlines the framework of future EU–UK relations. The chapter then offers a chronological summary of the process that led to the adoption of the Withdrawal Agreement, describing the crucial stages in the Brexit process — from the negotiations to the conclusion of a draft agreement and its rejection, to the extension and the participation of the UK to European Parliament (EP) elections, to the change of UK government and the ensuing constitutional crisis, to the new negotiations with the conclusion of a revised agreement, new extension, and new UK elections eventually leading to the departure of the UK from the EU.

The Future of British–Irish Relations after Brexit

This chapter assesses the impact of UK withdrawal from the EU on British–Irish relations. It examines yet another possible disintegrative effect of Brexit on the UK system, namely the re-unification of Ireland. The 1998 Belfast/Good Friday Agreement, bringing to a close decades of sectarian violence in Northern Ireland, had created an excellent working relations between Dublin and London. However, Brexit has threated this equilibrium, and has unexpectedly brought back on the agenda a possible border poll. The chapter then looks at the unfolding of the Brexit negotiations from June of 2016 to March of 2020 from the perspectives of British–Irish relations. It also studies the importance of the British–Irish relationship and the EU in the peace process in Northern Ireland, and considers potential methods of managing the relationship after Brexit.

Citizens’ Rights

This chapter addresses the provisions of the Withdrawal Agreement dealing with the protection of citizens’ rights. It explains the scope of application and the content of the rights afforded to EU citizens in the UK and UK citizens in the EU after Brexit. The chapter also looks at the enforcement of citizens’ rights, both in the EU and the UK. While the rights of EU citizens already in the UK, and rights of UK citizens in the EU, are fairly generously protected under the WA, the mechanism for enforcement of such rights raises questions of effectiveness. Moreover, the special jurisdiction of the Court of Justice of the European Union (CJEU) concerning Part Two of the Withdrawal Agreement, while a logical outcome from the perspective of EU constitutional law, will disappoint those who supported the UK government’s insistence that ending the jurisdiction of the CJEU was one of the UK’s red lines during the Article 50 TEU negotiations.

The Negotiations on the Future Trade Relations

This chapter examines the negotiations on the future relations between the UK and the EU. The UK left the EU on the basis of a Withdrawal Agreement, which includes an obligation to negotiate in good faith the future relationship between the parties. The framework for future cooperation is outlined in a non-binding Political Declaration attached to the Withdrawal Agreement. This foresees the conclusion after the end of the transition period of a free trade agreement. However, the parties’ respective negotiating directives and guidelines, made public in February of 2020, show a remarkable gap in objectives and features of the future agreement, to the point that a failure of the negotiations and a no-deal Brexit is still a possibility. The chapter then considers the provisions of the Withdrawal Agreement impacting the future EU–UK relations, namely Article 184 and the Protocol on Northern Ireland that already foresees rules applying between the parties post-transition, with respect to Northern Ireland. It also reflects on the challenges the UK faces in negotiating trade agreements with the EU while also doing so with the rest of the world.

The Transition

This chapter studies an innovative governance devise invented by the Brexit negotiators: transition — a stand-still period which will allow the UK to remain pro tempore part of the EU internal market and customs union despite being no longer a member state. On February 1, 2020, and ten months later than scheduled, the EU and the UK entered into a period of ‘transition’; a time between formal membership of the EU and the beginning of a new relationship. At one level, there is a certain taken-for-granted simplicity to the idea of managing not just an orderly exit of the UK from the EU but also the provision of continuity and certainty while the parties negotiate and decide their future relationship. But at another level, the formal terminology and indeed the metaphors used to describe this interim legal framework disclose some deeper tensions around the sequencing and organisation of the withdrawal process as well as the direction of travel of the parties. Transition was originally conceived as a bridge toward the future EU–UK relations, but the risks remain that it may turn into a bridge to nowhere — particularly if the period is not extended beyond December 31, 2020, given time-constraints for such new difficult negotiations.

The Future of the EU after Brexit, and Covid-19

This chapter reflects on the future of the EU after Brexit — as an entity of 27 member states (EU27). In dealing with a member state that had decided to leave, the EU27 proved able to stick together and jointly defend the common interests, including of its smaller member states. However, the EU27 have faced an increasing number of crises which have profoundly challenged their unity and resolve. Indeed, the subsequent crises shattering the EU — including the euro-crisis, the migration crisis, and the rule of law crisis — and climaxing with Covid-19 have exposed deep divisions among the EU27 and brought to the surface competing visions of the project of European integration. Three alternative ideas of what the EU is and ought to be are increasingly taking shape: a first that sees the EU as a polity, which requires solidarity and a communion of efforts towards a shared destiny; a second that sees the EU as a market, designed to enhance wealth through commerce, but with as limited redistribution as possible; and a third which instead sees the EU as a vehicle to entrench state authoritarian rule, based on national identity and sovereignty claims, but with crucial transnational financial support. While these alternative visions often coexist within each state, they have increasingly become hallmarks of states, or blocs thereof, which are openly facing each other in the EU arena.

The Future of the United Kingdom after Brexit

This chapter evaluates how Brexit and the withdrawal negotiations impacted the UK system of devolved governance. The focus is on devolution because the voices of the three devolved nations — Scotland, Wales, and Northern Ireland — have been too much ignored in Brexit manoeuvres, especially given Scotland and Northern Ireland voted in the Referendum to remain in the EU. The chapter then details the key points of the EU Withdrawal Act 2018 (EUWA) and EU Withdrawal Agreement Act 2020 (WAA), and looks at how Brexit will impact devolution. It also discusses the status of the UK’s existing territorial constitution. Finally, the chapter describes a possible federal future for the UK, and considers scenarios of regional independence.

The Extensions

This chapter examines the extension of UK membership in the EU, discussing the law and politics of Article 50(3) TEU. It also assesses the governance implications that the postponement of Brexit had on the EU institutions, including the European Parliament (EP), the Council of the EU, and the European Commission. The UK government notified its intention to withdraw from the EU pursuant to Article 50 TEU on March 29, 2017. It was expected therefore that the UK would leave by March 29, 2019. However, in March of 2019, the UK government was eventually pushed to seek an extension under Article 50(3) TEU — a dynamic which was repeated twice more in April and October of 2019, ultimately leading to the withdrawal of the UK from the EU only on January 31, 2020. The chapter maps the legal regulation of the extension of the withdrawal period, distinguishing it from the similar but different mechanisms of revocation and transition. It also analyses the practical implementation of extension in the three subsequent decisions that the European Council adopted, in agreement with the UK, during 2019.