Brexit Sovereignty and its Dead Ends

Abstract

In more ways than one, the Trade and Cooperation Agreement (TCA) concluded by the EU and the UK is a typical trade agreement. Its commitments are international in nature; its provisions create no directly effective rights and obligations for private parties to enforce under domestic law. The TCA thus turns from the central innovation of EU law, an innovation, which also lies at the heart of the Single Market. It is a price the UK is willing to pay for throwing off what it considers the yoke of EU law. This is not out of tune, perhaps, with a wider popular pushback against globalisation and the institutions perceived to represent it. But has Brexit truly returned control of its own laws to the UK, in both a formal and a practical sense? This article analyses the TCA as a balancing act between the parties’ ‘right to regulate’ and the EU’s demand of a level playing field, the ‘Brussels effect’ likely to constrain British attempts in the direction of regulatory divergence, and what has become of the formal effect of EU law in the laws of the UK.