This chapter considers the status of state aid, post-Brexit. One paradoxical result of the way in which the Johnson government handled the negotiation of the WA and the TCA is that, despite its general lack of enthusiasm about scrutiny of its decisions by independent or judicial bodies, it has ended up with not just one subsidy control regime governing its decisions on subsidies but two (the TCA regime and Protocol Article 10). That is not ideal from anyone’s point of view. There are many examples of issues under the Protocol that could give rise to serious political difficulties. But since disputes over the application of state aid law can affect the legality of critical economic decisions (taxation, rescue of important businesses), the political difficulties that could be caused by differences between the EU and the UK government approaches to Article 10 could well rank among the most serious.

This chapter primarily considers the way in which the Protocol Article 2 addresses human rights and equality issues in Northern Ireland, but also describes how the TCA supplements the Protocol in several respects, addressing issues that were left unaddressed by the Protocol, in particular issues concerning the protection of labour and social rights (in the ‘level playing field’ provisions) and the status of the European Convention on Human RIghts (ECHR). These will be considered more briefly in order to provide a more complete map of the new architecture of human rights and equality in Northern Ireland currently in place, without attempting to be comprehensive.

This chapter considers the post-Brexit procurement law landscape. While the UK procurement regime has undoubtedly changed, post-Brexit procurement remains both relatively detailed and relatively prescriptive, once the TCA, the position arising from the Protocol, and current UK government proposals for the future of public procurement are considered together. That said, the potential for greater flexibility in the future remains. Greater latitude clearly arises In respect of sub-threshold contracts, although increased flexibility may result in small and medium-sized enterprises (SMEs) losing important market access opportunities. Incorporation of secondary policies – social, labour and environmental objectives – into the procurement process has previously been closely regulated by the EU due to concerns of facilitating disguised ‘economic nationalism’, and thus an opportunity for expanding their use arises post-Brexit. Early indications are that there is an interest in pursuing this opportunity.

This chapter aims to discuss the main features of Protocol Article 16 and Article 773 TCA. In particular, it outlines the main differences between these safeguards and those safeguards inspired from the law of the World Trade Organization (WTO) that are typically included in standard trade agreements. It also explores how the distinctive features of Article 16 of the Protocol may impact the judicial review of safeguard measures. The chapter considers (i) safeguards as regulated under the law of the WTO, (ii) the safeguard provisions contained in the Protocol and the TCA and (iii) the extent to which the invocation of the safeguard provisions contained in the WA and the TCA might be capable of being judicially reviewed both under the arbitration provisions of the TCA and as a matter of EU and UK law.

Brexit was a complex political process, no less so legally. It entailed five principal legal instruments. There were two treaties, the Withdrawal Agreement (WA), which settled the terms on which the UK left the EU, and the TCA, which contained the detailed provisions as to the relationship between the UK and the EU on trade and other issues. Then there were three principal UK statutes: the European Union (Withdrawal) Act 2018 (EUWA 2018), which dealt with the acquis of EU law within the UK post-withdrawal; the European Union (Withdrawal Agreement) Act 2020 (EUWAA 2020), which gave legal force in UK law to the WA, in part by amending EUWA 2018; and the European Union (Future Relationship) Act 2020 (EUFRA), which incorporated the TCA into UK law. The focus of this chapter is on private rights that flow from the preceding instruments.

The agreeing of the TCA prevented the cliff edge consequences that law enforcement and prosecution authorities had been preparing for since 2016. The TCA sets out comprehensive provision in Part Three for Law Enforcement and Judicial Cooperation in Criminal Matters. With such a short period until the agreement was subsequently ratified and in force, there was little time for parliamentary scrutiny. This chapter seeks to examine the detailed arrangements which will form the basis of co-operation between the UK and the EU for the foreseeable future and asks how well the provisions work for Northern Ireland and the CTA.

This chapter provides an overview of how the Irish Sea customs border established under the Protocol functions in practice and what impact this new border has on companies trading between Great Britain (GB) and Northern Ireland.Given the ‘unique circumstances on the island of Ireland’,the border dividing Ireland and the UK was always going to be unlike any other border. The Irish Sea border, established under the Protocol, is a result of an imperfect compromise – an attempt to consolidate a range of requirements which, to a large extent, were contradictory.

The purpose of this Introduction is to set out some of the basic background needed to understand the scope and content of the Protocol, and how this book attempts systematically to describe and analyze it. The Protocol is most appropriately seen in the context of the desire to preserve the Belfast-Good Friday Agreement (1998 Agreement), the changing politics of the UK Parliament and government over the relevant period, and the subsequently negotiated Trade and Cooperation Agreement (TCA).