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The UK-EU Withdrawal Agreement: A Commentary

Thomas Liefländer, Manuel Kellerbauer and Eugenia Dumitriu-Segnana

review by

Allan F. Tatham

With the mantra of “Get Brexit done” as his successful election slogan, Boris Johnson convinced a tired UK electorate that, with one more push, he could achieve the finality of the withdrawal as arguably expressed in the June 2016 referendum, thereby leading the country to the “sunny uplands” of a revitalised “Global Britain”. Having “squared the circle” of maintaining the hard-won peace in Northern Ireland, by keeping open its trade border with the south as part of the EU’s customs union, while simultaneously remaining part of the United Kingdom, Johnson sought to paper over the cracks by dismissing as unfounded the fears of many commentators. They merely pointed to the fact that, since checks would need to be carried out on goods entering the EU single market, a border would come to exist between Northern Ireland, on the one hand, and the island of Great Britain, on the other. Instead, Johnson blithely told Unionist politicians that there would be no disruption or extra paperwork to trade with the rest of the UK. He thereby sowed the seeds of the current challenges, having disregarded the legal and constitutional implications of the practical operation of that Protocol to the 2019 Withdrawal Agreement, the renegotiation of which he himself had been the chief architect.

Against the present background of a marked deterioration in relations between the EU and the UK partly brought on by this dismissive approach to the realities of the Protocol, the timely publication of a legal commentary on the 2019 Withdrawal Agreement is most apposite. The overwhelming merit of the volume “The UK-EU Withdrawal Agreement: A Commentary” lies in the fact that Oxford University Press (OUP) has managed to bring together a team of ten legal experts, from both parties, who worked extensively on its drafting and negotiation. Through this collaboration, any suggestion of partisan views creeping into the contributions is undermined. What the reader accordingly gains is a balanced appreciation of the (future) workings of the Withdrawal Agreement.

The contributors write in a concise and lucid style, with a common presentation that aims to enhance the overall coherence in approach. The work commences with a thorough, measured discussion of the implications of Article 50 TEU, the withdrawal clause, in Chapter 1. Thereafter the focus of the volume necessarily shifts and follows the scheme of the Withdrawal Agreement itself. Thus, Chapters 2-7 deal in turn with each part on the common provisions; citizens’ rights; other separation provisions; transition; financial provisions; and institutional and final provisions. The last three focus on the protocols: on Ireland/Northern Ireland; on the UK Sovereign Base Areas in Cyprus; and on Gibraltar. Each contributor first provides both an introduction to and an overview of the Article(s) that they are going to examine, before the contents of the Article or Articles are set out in full, and they then subject them to a detailed analysis. Where several Articles are considered together or an important Article is considered alone, the contributor’s analysis instead starts with their general remarks on the provision(s) in question before turning to consider further the specific issues raised. Nothing is left out of consideration: the preambles to the Agreement and the three protocols are also commented upon. Finally, the volume is rounded off with an extensive index that is extremely helpful for those seeking to maximise use of the work in their professional or academic tasks.

The only real gripe – apart from very rare typographical errors and incorrect tense usage – arises from the need, on occasion, to have provided more up-to-date referencing. For example, in footnote 31 to 7.21, the Independent Monitoring Authority for the Citizens’ Rights Agreements now has its own dedicated website and there is no need access it via the gov.uk website. In addition, the 2020 Trade and Cooperation Agreement has been published in a definitive version (OJ L 149, 30.4.2021, p. 10) and the temporary numbering has now been reordered and superseded by consecutive numbering, e.g., footnote 127 to §7.95 refers to former Article COMPROV. 17(1), now Article 6(1).

This small point however does little to detract from the service that the authors have furnished for practising lawyers and researchers alike, in aiding their ready understanding of the new, complex legal reality brought about by entry into force of the Withdrawal Agreement. Through their commentaries, the contributors provide a practical appreciation of the legal problems arising from its implementation and enforcement. Any interested reader – whether lawyer, academic or departmental adviser – will find this volume an indispensable tool in their professional activities, allowing them quickly to grasp the fundamental issues at play in a particular case.

The inherent value of such a work might further encourage OUP to consider providing similar authoritative practitioner volumes, e.g., on the terms of the 2020 Trade and Cooperation Agreement. Moreover, a casebook on the decisions that have arisen and continue to arise in this post-Brexit legal field – linked to a dedicated website – might also be of particular assistance to practising lawyers and researchers.

 

Dr. Allan F. Tatham, Lecturer in EU Law, International Law and International Relations, Facultad de Derecho, Universidad CEU San Pablo, Madrid.

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