Index
Agnew, Lord, 279
agricultural support scheme limits, 50
agriculture
environmental significance, 246
exceptions under Article 10(2) of the Protocol, 77
potential triggering of CJEU jurisdiction, 57
provisions in the 1998 Agreement, 245
state aid controls and, 77
Aliens Act (1935), 174
all-island economy, 3
all-island environmental governance, 255
all-island market in services, 267
Alternative Arrangements Commission, 207
Anglo–Irish Agreement (1985), 25
animal health and welfare, 247,
annulment proceedings, on safeguard measures, , 316
anti-competitive behaviour, main forms of, 223
antimicrobial resistance, 248
anti-subsidy measures, 72
anti-terrorism, 4
antitrust, fairness in competition, 221
arbitration procedures, applicability to Protocol, , 77
Article 16 of the Protocol
EU’s decision to trigger, 314
invoked by UK and European Commission,
judicial review under the WA,
likelihood of success of individual concern applications,
safeguard measures,
UK’s invocation, 320
see also safeguard provisions. Article 50, scope of negotiations,
‘at risk’ goods,
aviation, 259
Bingham, Lord, 27
border
border crossing rules
third-country nationals resident in Ireland,
third-country nationals resident in Northern Ireland,
dilemmas caused by Brexit, 207
Brexit
border dilemmas caused by, 207
challenges for judicial co-operation between UK and Ireland,
choice among three objectives, 78
citizenship provisions of the 1998 Agreement and, 183see also identity and citizenship in Northern Ireland.
CTA and,
‘full Brexit’ terminology, 219
impact of UK’s exit from Brussels Regime, 301
impact on EU–UK relations, 138
principal legal instruments, 33
undeliverability of promised benefits,
Brexit referendum
and its aftermath,
concerns expressed by Northern Ireland, 143
political wrangling at Westminster, 8
UK’s policy objectives,
British citizenship, 12, ,
British Nationality Act (1948), 174
British Nationality Act (1981), , 190
British–Irish Intergovernmental Conference,
Budget, EU, 9
Bunreacht na hÉireann (1937), 28
business services, 259
Charter of Fundamental Rights (CFR), 3, 11,
‘added value’ rights,
affinity with Article 6(3) TEU, 161
debatable role, 100
development in EU law,
domestic status, 120
dynamism in Northern Ireland law, 127
intentions of UK domestic Brexit legislation towards, 159
origins and sources of inspiration, 160
position under section 5 EUWA 2018, 122
post-Brexit status in UK law,
CJEU and the ECtHR, 161,
continuing influence, 169
potential impact of repeal,
under the Protocol,
Preamble,
scope of application, 165
supporting framework to 1998 Agreement rights and safeguards, 156
uncertainty about future role of, 11
children, protection under the WA, 114
choice of law, , 298,
CITES, 253
citizens’ rights
CJEU’s role in respect of EU citizens, 116
difference between pre- and post-CFR eras, 160
Joint Committee and, 47
citizenship,
border crossing rules
third-country nationals resident in Ireland,
third-country nationals resident in Northern Ireland,
population of non-UK or non-Irish citizens on the island of Ireland, 194
rights of ‘New (Northern) Irish’, 195
rules on entry to Ireland for EU citizens resident in Northern Ireland, 199
rules on entry to Northern Ireland for EU citizens resident in Ireland, 196
Civil Liberties, Justice and Home Affairs Committee (LIBE), 294
climate change, 221
commercial transactions, 198
Commission enforcement, 111
Commission of the European Union (the Commission), 18
Committees of the Protocol,
function and scope, 44
Joint Committee,
Joint Consultative Working Group,
post-transition period performance, 54
Specialised Committees,
see also under individual committees. Common Travel Area (CTA),
1998 Agreement and resuscitation of, 3
arrangement and function, 173
blindness towards family members, 203
Brexit and,
Brexit Services Deal, 262
citizenship rights under,
co-operation requirements between police authorities, 285
creation and pre-Brexit situation,
effects of Brexit, 173
exclusion of ‘New (Northern) Irish’ from benefits of, 194
formal recognition, 174
governance and visas,
in Irish Law,
legal basis,
limitations, 203
movement of professionals, 263
protection from discrimination and, 143
rights and privileges conveyed by, 173
scope for tension between EU law and, 134
services and rights provisions, 133
UK obligations on continued application, 258
Competition and Consumer Protection Commission (CCPC), 229
competition law,
application of EU law to Northern Ireland pre- and post-Brexit, 219,
competition law generally under the TCA,
continuing application of EU competition law to the UK as a third country, 230
cross-border investigations, 229
democratic consent mechanism, 227
institutional dimensions,
interpretation of treaties and, 229
level playing field provisions (Title XI TCA),
competition and the ‘level playing field’,
competition policy,
conceptual relationship with private rights,
electricity and gas,
environmental protection, 248
function, 156
rights and,
state-owned enterprises, enterprises granted special rights or privileges and designated monopolies, 225
UK implementation of private rights,
likely divergence between Northern Ireland and the EU,
main issues, 223
new names for old concepts, 223
post-Brexit differences,
replacement of historical convergence by divergence, 223
see also Trade and Cooperation Agreement (TCA). competition policy, , 226
Concession Contracts Regulations 2016, 279
Conservative Party,
contracts, , 269, 272, 274, 276, 277, 280, 296, 298, 304
reservation ‘beyond covered procurement’ for local suppliers, 278
see also sub-threshold contracts. Court of Justice of the European Union (CJEU), 9, 18
annulment proceedings,
case law on trade remedies, 315
competence in respect of EU citizens’ rights, 116
dispute settlement,
arbitration provisions, 62
controversy in role, 55
practical application,
provisions of the Protocol,
driving role in UK’s withdrawal from the EU, 55
enforcement role of Protocol provisions, ,
experience using the interpretive methodology of the VCLT, 90
imposition of punishment for breach of the Protocol, 112
influence of CFR on retained jurisprudence, 162
post-Brexit status in UK law,
provisions under Protocol modifications to the WA, 12
public procurement reform in the UK, 279
relationship with the CFR, 160
requirement for UK to engage in case law, 10
‘sincere co-operation’, application of the concept, 97
state aid controls and, 77
state aid, summary of case law, 239
covered procurement, , 275,
Crawford, James, 82
creative industries, 262
Criminal Record Information System (UKCRIS), 291
Crown Dependencies, 173
Cummings, Dominic, 269
customs duties
GB to Northern Ireland movement of goods, 74
goods entering Northern Ireland, 208
Union system of relief, 72
waiver scheme,
customs legislation, EU, continued application in Northern Ireland, 208
customs territory, provisions under the Protocol, 72
Cyprus, 10
damages
capping level of, 280
claiming for breach of UK competition law, 228
EU law, 148
state aid and, 233
state liability (Francovich rule), 155
damages actions, 39
Damages Directive, 228
decommissioning, addressed in 1998 Agreement, 23
Denmark, 298
Department of Agriculture Environment and Rural Affairs, 249
DeSouza case, 186,
Dicey, AV, 127
Digital Markets Act, 223
digital trade, 259
direct effect
Article 2 of the Protocol,
conditions for, 111
denial in TCA,
discrimination and, 198
good faith and, 100
human rights and,
intra-corporate transferees and, 201
meaning of, 154
provisions under the WA, , , 131
section 7 A EUWA 2018 and,
direct rule, 143
disabilities, protections for rights of persons with, 152
dispute resolution, public procurement, 278
dispute settlement,
arbitration procedure,
Commission’s initiation of procedures, 16
controversy in the role of the CJEU, 55
judicial review
under EU law,
under UK law,
under the WA,
jurisdiction of the CJEU,
likely role of Article 5 WA, 102
preliminary reference procedure,
safeguard provisions,
district council,
ECN+ Directive, 228
education
potential triggering of CJEU jurisdiction, 57
eels, 253
enforcement actions, 226
Environment Bill (UK), 251
environmental protection,
Brexit and the possibility of increased regulatory divergence,
exclusions from the Protocol, 71
impact of links to trade, 246
level playing field provisions (Title XI TCA), 248
Northern Ireland, continued compliance with EU environmental law, 246
on the island of Ireland,
potential negative impacts of border controls,
provisions under the TCA, 248
provisions under the 1998 Agreement, 245
risk of decline in Northern Ireland, 251
equal pay, 143
EU citizens
citizens’ rights, 116
classification under UK immigration rules, 196
rights under the WA for UK residents, 144
rules on entry to Ireland for Northern Ireland residents, 199
rules on entry to Northern Ireland for residents of Ireland, 196
see also non-Irish EU citizens. EU Commission, ‘beyond covered procurement’ response, 277
EU competition law, adaptations in, 228
EU customs legislation, continued application in Northern Ireland, 208
EU Governance of the Protocol, legal structure,
EU internal market, protecting the integrity of, 56
EU law
continued application in Northern Ireland, 247
judicial review under,
legal underpinnings of the 1998 Agreement,
EU Merger Control Regulation, 228
EU Settlement Scheme Residence Card, 202
EU–Canada Comprehensive Economic and Trade Agreement (CETA), 197
European Arrest Warrant Framework Decision (EAW FD),
European Coal and Steel Community (1951), 232
European Commission
adjudication role, 228
attempts to impose export restrictions on movement of Covid-19 vaccines, 314
co-operation and co-ordination agreement, 226
data protection and, 294
infringement proceedings against the UK,
initiates dispute settlement procedures of Protocol, 16
objections to UK Internal Market Bill,
requirements with regard to UK internal market, 237
safeguard provisions and, 313
sanctioning powers, 230
state aid role,
supervisory jurisdiction, 77
European Competition Network (ECN), 229
European Convention on Extradition (1957), 286
European Convention on Human Rights (ECHR), 18, 25, 29, 83, 87, 88
continuing UK membership, 147
judicial co-operation and,
obligations on the Irish government to incorporate into Irish law, 145
post-Brexit status in UK law,
relationship with ‘fundamental rights’, 160
TCA and,
European Court of Human Rights (ECtHR), post-Brexit status in UK law, 161,
European Criminal Records Information System (ECRIS), 291
European Data Protection Board (EDPB), 293
European Economic Area (EEA), 18
Article 1 objectives, 95
comparison with Protocol provisions, 11
dismissal of suggestions that the UK should join, 6
EEA–EFTA separation agreement, 114
Lugano Convention and, 303
residents’ card, 202
European Free Trade Association (EFTA), 18
EEA–EFTA separation agreement, 114
loyalty provision, 97
Lugano Convention and, 303
Surveillance Authority, 101
European Investigation Order (EIO), 292
European Parliament
Civil Liberties, Justice and Home Affairs (LIBE) Committee, 294
data protection resolution, 294
no obligation to discuss decisions of Joint Committee, 47
potential annulment action, 313
European Social Charter, 156
European Union (EU)
disputes with UK concerning the Protocol,
policy implementation role of North–South bodies, 24
‘red lines’, 9
role in easing tensions between the UK and Irish governments,
European Union (Withdrawal Agreement) Act 2020 (EUWAA 2020), 33, 107
amendment of EUWA 2018,
CFR and, 165
citizens’ rights and, 114
contents and scope, 33
interconnected provisions in the WA and, 164
provisions for NIHRC and ECNI monitoring roles, 153
European Union (Withdrawal) Act 2018 (EUWA 2018), 18
concept of ‘retained’ EU law, 246
contents and scope, 33
Francovich liability and, 155
interplay between the NI Act 1998 and,
Protocol and,
provision for continued supremacy of EU retained law, 108
repeal of ECA 1972, 159
retained law and rights,
EU–UK Joint Report (December 2017), 133
EU–UK Trade and Cooperation Agreement, 18
Fair Employment and Treatment Order (1998), 143
family members
CTA’s blindness towards, 203
of British nationals in Northern Ireland, 203
of Irish citizens, 200,
food imports, 58
food safety, 75
food safety, North–South co-operation, 52
food serving services, 271
food standards and labelling, 247
food, for sale in the UK, 213
Forum on Immigration Matters, 180
Framework Convention on National Minorities, Council of Europe, 29
free movement of persons, non-engagement of Treaty rules, 71
free movement of services, non-engagement of Treaty rules, 71
frontier workers
addressed by MOU, 178
definition, 115
pre- and post-Brexit position,
rights under the WA, 115
fundamental rights
Charter of Fundamental Rights,
derivation, 161
human rights and equality issues,
see also Charter of Fundamental Rights; human rights and equality. gas market, , 271
gender equality, 192
General Agreement on Tariffs and Trade (GATT), 310
General Data Protection Regulation (GDPR), 293
General Election (2017), 7
General Election (2019), 79
General Election (2020), 8
Gibraltar, 10
Global Health Insurance Card, 189
good faith,
general principle of international law, 92
implications of obligations,
interpreting references to, 93
justiciability, 98
Good Friday Agreement (1998 Agreement), 1,
alterations to application of arrangements, 22
challenges posed by the UK’s exit from the EU,
commitments on human rights and equality, 25
context and content,
continuing UK membership of ECHR and, 147
design, 23
environmental protection provisions, 245
human rights and equality legislation facilitated by,
implementation mechanisms, 13
influence on the shape of Brexit, 184
legal status
international law,
Ireland,
United Kingdom,
legal underpinnings in EU law,
legitimacy, 23
‘no diminution’ protection, 293
North–South co-operation provisions, 122
outline, 2
‘parity of esteem’ principle, 192
potential impact of decline in environmental protection in Northern Ireland, 251
Protocol in Irish Law and,
scope of rights protection, 145
status in the USA and the EU, 21
structure, 23
three-stranded approach, 23,
Gove, Rt Hon Michael, 45
governance
all-island environmental governance, 255
CTA governance and visas,
domestic,
EU, , 160
Ireland,
multilevel, 246
role of the SCLE&JC, 293
UK,
Green Paper, ‘Transforming Public Procurement’,
Guernsey, 173
Hague Convention on Choice of Court Agreements (2005),
health certificates, 211
health services, 173
Henry VIII clause, 34
higher education
potential triggering of CJEU jurisdiction, 57
‘Hipster’ competition, 223
HM Revenue and Customs (HMRC), 218
Hoffmann, Lord, 27
Horizon Europe, 266
House of Lords EU Internal Market Sub-committee, 236
House of Lords European Union Committee, 54
human rights
commitments under the 1998 Agreement, 25
continuing UK membership of ECHR, 147
criminal justice context, 157
dependence on strong rule-of law-culture, 169
evolution in EU law,
Irish government’s protection efforts,
TCA and, 13
see also European Convention on Human Rights (ECHR); human rights and equality; Northern Ireland Human Rights Commission (NIHRC). identity and citizenship in Northern Ireland,
birthright provision of the 1998 Agreement,
continuation of ‘EU rights, opportunities and benefits’,
intertwining of Brexit and, 184
mitigating for Brexit,
‘parity of esteem’ under the 1998 Agreement, 192
Immigration Act (2004), 174
Independent Monitoring Authority (IMA), 116
individual enforcement,
Intergovernmental Agreement on Co-operation in Criminal Justice, 285
Internal Market Act, 250
Internal Market Bill, UK government’s proposal, 15
International Bureau of the Permanent Court of Arbitration, 61
International Competition Network (ICN), 229
International Court of Justice, 26
International Labour Organization Conventions, 156
international law
Article 10 of the Protocol and, 237
future relationship and, 128
Ireland’s and the UK’s dualist approach, 13
legal structures for co-operation, 122
rules on treaty interpretation,
status of the 1998 Agreement,
UK Internal Market Bill and, 169
UK obligations, 144
uncertainty over UK’s compliance, 16
see also private international law. International Law Commission, 86
international maritime trade, 259
interpretation of treaties,
central articles of the VCLT, 90
conflicts,
effectiveness principle (effet utile), 84
general framework of rules,
goal under the VCLT, 82
international law rules,
peremptory norms and other treaties,
roles of subsequent agreements and other rules of international law,
supplementary means, 89
TCA and WA provisions,
text-based starting point,
interpreting the Protocol,
invasive species, 252
Ireland
border crossing rules for third-country nationals resident in,
Brexit mitigation efforts,
Common Travel Area arrangements, 173
dualist approach to international agreements, 130
dualist approach to international law, 13
exchange of information between the UK and,
extradition relationship between the UK and,
legal status of the 1998 Agreement,
population, 194
rules on entry for EU citizens resident in Northern Ireland, 199
Irish citizens residing in Northern Ireland, rights under the WA, 144
Irish government
action on services, 263
border concerns, 184
co-guarantorship, 27
determination to limit the impact of Brexit, 261
Joint Committee meetings and, 47
significance of the CTA, 180
Irish Human Rights and Equality Commission, 29
Irish language, 192
Irish Parliament, 134
Irish Sea border,
background, 8
border dilemmas caused by Brexit, 207
introduction and impact under the Protocol,
potential impact on Northern Ireland trade,
rushed guidance on,
TCA and, 12
treatment of goods
moving from GB to Northern Ireland,
moving from Northern Ireland to GB,
island of Ireland
Brexit’s unique challenge, 129
‘equivalence’ under the 1998 Agreement, 30
establishment of an all-island economy, 3
EU membership and cross-border trade in goods and services,
Joint Committee of the Human Rights Commissions, 25
population of non-UK or non-Irish citizens, 194
potential for imposition of trade barriers within, 309
significance of the 1998 Agreement for,
see also North–South co-operation. Israel, 304
Italian Torpedo, 303
Jersey, 173
Joint Agency Task Force, 285
Joint Committee, 18
Article 2 of the Protocol and, 152
establishment, 10
formal and informal,
monitoring and reviewing role,
operation of, 47
powers,
remit,
responsibilities for deciding customs arrangements, 208
responsibilities under the Protocol, 49
role in West-East trade arrangements, 73
Joint Cross-Border Policing Strategy, 285
Joint Investigation Teams, 293
judicial co-operation,
challenges of Brexit,
exchange of information between the UK and Ireland,
extradition relationship between the UK and Ireland,
oversight and ancillary concerns,
prisoner transfer, 292
transmission of an arrest warrant, 290
judicial review
EU law,
fundamental review of, 168
standing requirements under UK law, 317
state aid and, 233
under the WA,
judiciary, Brexit-related criticisms, 168
jurisdiction/recognition and enforcement, alternative approaches for post-Brexit UK,
Brussels Convention, 302
Hague Convention on Choice of Court Agreements,
Lugano Convention,
jus cogens, 89
Labour Party, 6
Law Applicable to Contractual Obligations and Non-contractual Obligations (2019), 300
Law Enforcement Directive, 293
legal hybridity, , 121,
legal language of the Protocol, challenges for traders, 215
level playing field
environmental standards, 248
function, 156
rights and,
TCA and, 13,
see also under competition law; Trade and Cooperation Agreement (TCA). linguistic diversity, protections under Article 2 of the Protocol, 147
litigation
competition law, issues needing to be addressed by, 229
concerning interpretation of the Single Market and customs arrangements, 12
DeSouza litigation, 190
EU level harmonization of jurisdiction rules and, 299
fixes for third state litigation, 303
on birthright provision of the 1998 Agreement, 186
Lough Neagh eel fishery, 253
Loughs Agency, 245
loyalty, principle of, , 97
Lugano Convention,
Magna Carta, 125
Memorandum of Understanding (CTA)
family members, 200
financial services provisions, 258
health care and reimbursement arrangements, 134
rights and privileges, , 194
Mexico, 304
migrant workers, 174
Modernisation Regulation,
monitoring and reviewing, role of the Joint Committee,
monopolies, 225
Montenegro, 304
Morgan, Austen, 190
multilevel governance, 246
nature conservation, 247
negotiations
apparent absence of jurisdiction/enforcement rules, 302
Article 50, scope of,
decision to authorize the triggering of, 6
peace process, 3
post-Referendum negotiations, 1
net-zero, 248
New (Northern) Irish
definition, 194
EU citizenship rights, 195
percentage of the population on the island of Ireland, 195
non-Irish EU citizens
potential impact of restrictions on cross-border work for, 198
provisions for family members, 200
non-regression, , 250
non-tariff barriers,
Northern Ireland, 25
anger over implementation of the Protocol, 16
application of EU rules to, 11
border crossing rules for third-country nationals resident in,
challenges posed by the UK’s exit from the EU,
citizens’ rights under the Protocol, 164
continuation of single market provisions, 42
continued application of EU law, 247
continued application of the EU’s customs legislation, 208
democratic consent mechanism, 11
devolved government, 2
divergence from GB trade rules, 70
domestic legal implementation of the 1998 Agreement, 14
dynamic alignment under the Protocol, 48
environmental regime,
potential for and impact of divergence,
franchise for district council elections in, 148
impact of the Irish Sea border on traders in,
obligations in relation to the two constitutional orders, 118
post-Brexit status, 129
potential impact of non-application of the mutual recognition principle, 250
pre-Referendum consideration of the potential impact of a ‘leave’ vote on,
public opinion on Brexit, 7
rules on entry for EU citizens resident in Ireland, 196
special relationship with Ireland, 129
Troubles, 287
value of services sector,
voting rights in district council elections,
Northern Ireland Act (1998), , , 30, 118, 127, 143
constitutional status, 125
interplay of EUWA 2018 with,
Protocol and,
Northern Ireland Assembly, 2, 24
British government’s policy commitments, 147
changes to number of members, 23
obligations of the British government, 147
remedy for withholding of consent, 50
suspension, legislation enacted by Westminster/UK government ministers during, 143
Northern Ireland Civil Service, 52
Northern Ireland Constitution, ,
North–South co-operation
constitutional significance of the Protocol for, 138
safeguarding under section 10 EUWA 2018,
shape of Brexit and, 184
six areas of agreed co-operation, 25
North–South dimension of the 1998 Agreement, 23
Organisation for Economic Co-operation and Development (OECD), 225
Partnership Council, 293
Part-Time Work Directive, 143,
Penrose Report, 223
peremptory norms, 89
Permanent Court of Arbitration, 61
pesticides, 247
ponies, 254
pre-settled status, , 116
pregnancy rights, 152
pregnant workers, 152
pre-trial detention, 288
prisoners, addressed in the 1998 Agreement, 23
private international law
commercial disputes and, 12
facilitation of cross-border enforcement of commercial judgments, 4
procedural fairness, 226
professional services, 259,
prorogation of UK Parliament, 7
Protocol
as device to ‘get Brexit done’, 79
calculated ambiguity, 69
challenge launched by unionist politicians in NI courts, 15
constitutional significance, 137
content and scope, 70
customs territory provisions, 72
disputes concerning,
East–West trade (GB to Northern Ireland),
enforcement,
evasive terms, 72
future of,
interpreting,
Irish law,
1998 Agreement,
Common Travel Area,
status and effect,
misrepresentation by the UK government, 69
Northern Ireland law,
constitutional statutes and,
EUWA 2018 and,
NI Act 1998 and,
objectives and impact,
post-Brexit significance, 139
provisions under Article 3 on movement of persons, 194
purpose, , , 137
reasons for existence,
state aid controls,
West-East trade (Northern Ireland to GB),
Public Contracts Directive, 279
public procurement,
annual spending in the UK and the EU, 269
aspects regulated by the GPA, 272
‘beyond covered procurement’,
provisions under the TCA,
reservation of contracts for local suppliers, 278
responses,
terms under the Protocol,
UK government plans for the SME sector,
general post-Brexit framework (TCA/GPA framework), , 281
legislation facilitated by 1998 Agreement, 143
modifications, rectifications and dispute resolution, 278
post-Brexit flexibility, 281
reform in the UK,
amendments,
Green Paper on ‘Transforming Public Procurement’,
potential issues, 280
tendering requirements, 279
termination rights, 279
SMEs, 277
Special Drawing Rights, 271
Public Procurement (Amendment etc) (EU Exit) Regulations 2020, 278
reciprocal rights, WA provisions, 144
‘regression by default’, 249
remedies
CJEU case law on trade remedies, 315
ensuring courts/tribunals have power to impose, 38
for failure by the UK to track replacement Directives, 100
for human rights violations, 167
provision under Article 2 of the Protocol, 147
provision under Article 5 WA, 100
public procurement,
TCA specifications, 39,
temporary, 319
reputational damage, 79
retained EU law
adaptation and its impact, 249
concept of, 246
environmental protection, 246
potential for divergence within GB, 250
UK government’s proposal to replace EU state aid law with ‘guidance’, 237
retained-EU law, likelihood of repeal, 162
rights
level playing field provisions and,
reciprocal rights, 144
self-determination rights, 24
social housing rights, 179
social protection rights, 179
see also citizenship rights; civil rights; fundamental rights; human rights; human rights and equality; residency rights. road haulage, 259
Rome Convention of 1980, 298
Royal Prerogative, 6
rules of origin, 272
safeguard provisions
dispute settlement,
EU–UK trade relationship context,
invoked by both the European Commission and the UK, 15
judicial review
EU law,
UK law,
WA,
North–South co-operation under section 10 EUWA 2018,
potential for imposition of trade barriers within the island of Ireland, 309
Protocol’s introduction, 12
Second-Generation Information System (SIS II), 285
Second World War, 174
security
addressed in the 1998 Agreement, 23
fundamental rights and, 161
potential triggering of CJEU jurisdiction, 57
Šefčovič, Vice President, , 112
self-determination, rights under the 1998 Agreement, 24
services,
Brexit Services Deal,
Common Travel Area and, 262
impact on creative service industries, 266
impact on financial services,
impact on professional services,
Irish government action and, 263
Irish reservations,
moderating the effect,
examples of cross-border provisions, 198
importance to modern economies, 256
reasons for the failure to reach a better deal on, 257
single market in, 257
value of sector in Northern Ireland,
settled status
and right of entry into Northern Ireland, 199
application process,
deadline for submitting an application, 115
sex-based rights,
sexual orientation, anti-discrimination, 143
Shared Island Unit, 29
Singapore, 304
Single Market
CJEU’s role, 12
continuation in Northern Ireland, 42
for goods, 184
Ireland as a stepping-stone for access to, 267
potential impact of Brexit, 267
risk posed by goods entering Northern Ireland from outside the EU, 49
UK’s exit from, 37
Single Use Plastics Directive, 248
Smith, Lisa, 186
social housing, rights under the CTA, 179
social inclusion, obligations on the UK government under the 1998 Agreement, 147
soft border,
soft legislation,
Special European Union Programmes Body, 25
Special Immigration Appeals Commission, 186
Specialised Committee on Ireland–Northern Ireland (INISC), 18,
Article 2 of the Protocol and, 152
function, 44
JCWG’s reporting role, 53
operation of,
remit,
Specialised Committee on Law Enforcement and Judicial Cooperation (SCLE&JC), 288, 289, 292, 293, 294, 295
Specialised Committees, Joint Committee’s responsibilities, 48
St Andrews Agreement (2006), 22
state aid, 232
Article 10 of the Protocol
background,
terms,
UK government’s conduct during the transition period,
dispute resolution,
effects on trade as a crux issue, 238,
Protocol’s treatment,
references to in the TCA, 220
role of the European Commission,
state aid rules, 70
state liability principle, 56
state-owned enterprises, 225
subsidiarity principle, recognition in the CFR, 161
subsidy controls, , 40
Supreme Court (United Kingdom), 36
‘take back control’ rhetoric, , 183
tariffs
divergent, 69
terminology, choice of,
terrorism, increasing concerns regarding the threat of, 216
third countries, exportation of goods from the Union to, 74
third-country nationals resident in Ireland, border crossing rules for,
third-country nationals resident in Northern Ireland, border crossing rules for,
tort, , 299
TRACES (TRAde Control and Expert System), 253
trade
environment and,
GB to Northern Ireland,
Northern Ireland to GB,
North–South co-operation, 52
potential impact of environmental controls at borders,
Trade and Cooperation Agreement (TCA)
Article 3 obligations, 97
categories of persons entitled to stay temporarily in the UK,
comparison with CETA, 259
competition law
enforcement and co-operation,
generally,
contents and scope, 33
covered procurement, additional services, 271
dispute settlement rules, 293
environmental protection provisions, 248
EUFRA and enforcement of rights,
financial services provisions, 264
human rights provisions,
impact on creative industries, 266
implementation, 107
information exchange provisions between UK and Ireland,
interpretation criteria, 94
interpretation provisions,
lack of a mobility chapter,
level playing field provisions (Title XI),
competition and the ‘level playing field’,
competition policy,
conceptual relationship with private rights,
electricity and gas,
environmental protection, 248
function, 156
rights and,
state-owned enterprises, enterprises granted special rights or privileges and designated monopoly, 225
UK implementation of private rights,
mobility of persons, 260
outline,
preamble, 84
provisions for modifications and rectifications of market access commitments, 278
public procurement
‘beyond covered procurement’,
framework, 270
incorporation of GPA provisions,
SMEs, 277
relationship with the ECHR, 88
rights of family members of EU citizens, 201
safeguard provisions,
services provisions,
short-term work provisions, 201
silence on jurisdiction/enforcement issues, 302
supplementation of Protocol by, 69
temporal exigency, 34
transmission of an arrest warrant, 290
trade barriers
potential for imposition within the island of Ireland, 309
under the WTO safeguards regime, 310
trade diversion, 74
trade rules covered by the Protocol, 70
Trade Specialised Committee on Level Playing Field for Open and Fair Competition and Sustainable Development, 225
Trader Support Service (TSS), , 218
‘Transforming Public Procurement’ (Green Paper),
transitional arrangements, 162
travaux préparatoires, 88
Treaty of Amsterdam (1999),
Treaty of Rome (1957), 232
Treaty on the Functioning of the European Union (TFEU)
applicability to the UK under the Protocol, 120
binding nature of agreements concluded by the Union, 131
on breach of the Protocol, 111
trusted-trader status, 51
UK citizens residing in the EU, rights under the WA, 144
UK government
application of Article 2 of the Protocol, 153
conduct during transition period on Article 10 of the Protocol,
UK single market, 258
UK Trade Policy Observatory, 212
UK-wide backstop, 184
Ulster Unionist Party, 183
UN Charter, 89
UN Security Council resolutions, 57
Union Customs Code (UCC), 211
Union with Scotland Act (1706), 125
unionist politicians, legal challenge to the Protocol, 15
United Kingdom (UK)
categories of persons entitled to stay in temporarily under the TCA,
disputes with EU concerning the Protocol,
dualist approach to international law, 13
EU commences legal proceedings against, 46
legal status of the 1998 Agreement,
obligations under the Protocol, 144
permitted activities under UK immigration rules, 198
policy objectives of Brexit,
rejection of supremacy of EU law, 110
unilateral declaration concerning certification of food imports into Northern Ireland,
United Nations Conference on Trade and Development (UNCTAD), 217
United States (US)
UK’s potential for negotiation of free trade agreement with, 8
Universal Declaration on Human Rights, 157
Utilities Contracts Regulation (2016), 271
vehicular emissions, 247
Victims Directive, 152
Vienna Convention on the Law of Treaties 1969 (VCLT)
competition law and, 229
good faith principle,
obligations on state parties, 26
rules of treaty interpretation,
see also interpretation of treaties. visas
multi-journey visa, 202
requirements for third-country national family members visiting Northern Ireland, 201
rules for EU citizens visiting the UK, 196
short stay C-visa, 202
Vote Leave, 269
water quality and pollution, , 251
welfare rights, CTA and, 133
Westminster Parliament
application of Article 2 of the Protocol, 153
contested role in triggering EU negotiations, 6
courts’ absolutist view of powers, 127
decisions on retention of EU law, 40
devolution of powers, 2
legislation enacted during the Northern Ireland Assembly suspension, 143
legislation requirements for the WA, 107
no obligation to discuss decisions of the Joint Committee, 47
political wrangling, 8
post-Brexit return to more absolutist view of powers, 127
prorogation of, 7
Withdrawal Agreement (WA), 1, 18
arbitration procedures, Protocol elements subject to, , 77
Article 5
enforcement of rights,
case study (letters between the Commission and the UK),
individual,
UK government’s responsibility,
good faith and sincere co-operation,
interpretation approaches,
interpreting ‘good faith’ reference, 93
likely role in future UK–EU disputes over application of the Protocol, 102
objectives of the WA and the Protocol, 96
‘sincere co-operation’ in,
availability of the negotiating record, 89
CFR and, 165
citizens’ rights, 116
citizens’ rights, EU citizens, 116
comparison with the TCA, 13
creation of multiple classes of rights holder, 188
human rights and equality provisions, 144
implementation into UK law,
interpretation provisions,
Joint Committee’s decisions having the same legal effect as, 47
judicial review,
location of rules of procedure for Committees of the Protocol, 44
outline,
overseeing body, 44
principal conduit for incorporation of the UK’s obligations under, 108
Protocol as ‘integral part’ of, 131
Protocol modifications and additions, 12
ratified by the UK, 8
rights-based provisions under the Protocol,
scope of Article 50 negotiations,
status in UK law,
UK accused of breach, 89
withdrawal from the EU (Article 50 TEU),
Yeats, WB, 192
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