Part Three of the EU-UK TCA – From a ‘Disrupted’ Area of Freedom, Security and Justice to ‘New Old’ Intergovernmentalism in Justice and Home Affairs?

Brexit Institute Working Paper Series, No 1/2021

25 Pages Posted: 18 Mar 2021

See all articles by Oliver Garner

Oliver Garner

Bingham Centre for the Rule of Law, British Institute of International and Comparative Law

Date Written: February 3, 2021

Abstract

During membership, the UK was the leading protagonist of ‘disrupted integration’ within the Area of Freedom, Security and Justice. Part 3 of the Trade and Cooperation Agreement (TCA) replaces differentiation with a ‘new old’ form of intergovernmental cooperation in justice and home affairs. The substance does simulate – to varying degrees – the EU law acquis in areas such as Passenger Name Records, Europol and Eurojust, and extradition. The protection of fundamental rights – in particular on data protection – has been embedded into the provisions. Part 3 also mandates future dynamic development of EU-UK security cooperation. However, the structures for governance and dispute resolution exclude any role for supranational political and legal institutions. Instead, the paradigm of diplomatic intergovernmentalism of the old Third Pillar of the European Community has been resurrected.

Keywords: Brexit, TCA, Justice and Home Affairs, AFSJ, EU-UK future relationship

Suggested Citation

Garner, Oliver, Part Three of the EU-UK TCA – From a ‘Disrupted’ Area of Freedom, Security and Justice to ‘New Old’ Intergovernmentalism in Justice and Home Affairs? (February 3, 2021). Brexit Institute Working Paper Series, No 1/2021, Available at SSRN: https://ssrn.com/abstract=3778183 or http://dx.doi.org/10.2139/ssrn.3778183

Oliver Garner (Contact Author)

Bingham Centre for the Rule of Law, British Institute of International and Comparative Law ( email )

Charles Clore House
17 Russell Square
London WC1B 5JP
United Kingdom

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