Monday, 3 February 2020

Brexit Briefing January 2020



Jane Lambert

Some marked the UK's departure from the EU with countdowns and flag-waving.  Others, such as "Led by Donkeys", protested. I attended a concert by the European Union Chamber Orchestra at St George's Hall in Bradford,  As its name suggests, this is an orchestra made up of artists from 10 countries which is funded by the European Commission,  It describes itself on its homepage as a "musical ambassador" for the European Union.

As I listened to the music I would not help reflecting on the smoothness with which brexit had been achieved.  Thanks to the  Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community, the rules that have governed this country's relations with its nearest neighbours, closest allies and biggest market will continue to apply until the end of the year at least and in some respects beyond which gives businesses and individuals time to plan. However, I also reflected that achieving such continuity had been a close-run thing.  The Agreement was signed only in the last few days of January and the legislation which implements it received royal assent only on 23 Jan 2020.  For much of the period since the referendum, there was a very real danger that the rules governing the UK's relationship with the 27 remaining member states would simply cease to apply when it left the EU.

In the field of intellectual property, much of the way ahead has been charted by art 126 and Title IV of the withdrawal agreement as I explained in Intellectual Property Post Brexit 2 Feb 2020 and The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2018.  However, some uncertainties remain.  One is whether the Unified Patent Court Agreement will ever come into force and if it does whether the United Kingdom can remain a party to it.  Another is whether the UK will accede to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters when  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 ceases to apply.  One hopeful sign is that Iceland, Norway and Switzerland have agreed to support the UK's intent to accede (see the Ministry of Justice's News story Support for the UK’s intent to accede to the Lugano Convention 2007 28 Jan 2020).   I discussed the mechanics of the settlement between the UK and the EU in The Revised Draft Withdrawal Agreement and Political Declaration  21 Oct 2019 and The European Union (Withdrawal Agreement) Act 2020 30 Jan 2020). 

Now that the UK has left the EU the focus changes from the terms of withdrawal to the future relationship.  The European Commission has already begun to set out its stall with the President's speech to the London School of Economics (see The UK's Future Relationship with the EU - Ursula von der Leyen's Speech and Meeting with Johnson 9 Jan 2020).   It has also published its position on a number of issues (see The UK's Future Relationship with the EU - The Commission sets out its Negotiating Position 17 Jan 2020).  The Prime Minister is due to set out the UK's position today (see Rajeev Syal and others UK will refuse close alignment with EU rules, Johnson to say, Prime minister’s vision on future trading relationship will clash with that of EU leaders 2 Feb 2020 The Guardian/ The Observer).

To reflect the change of focus I have removed many of the links on this website to resources on the withdrawal agreement negotiations and inserted links to resources on the future relationship.  Anyone wishing to discuss this article should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page. 

Sunday, 2 February 2020

Intellectual Property Post Brexit

Author Furfur  Licence CC BY-SA 4.0 Source Wikipedia Brexit





















Jane Lambert

While many regret the UK's departure from the EU, it could have been so much worse.  There was a very real danger that the 2 year notification period provided by art 50 (3) of the Treaty of European Union would expire without any agreement on the arrangements for British withdrawal and that the rules that had governed the UK's relations with its nearest neighbours, closest allies and biggest market would simply cease to apply. The Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community sets out the terms upon which the country leaves the EU and the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom maps out the path for future cooperation.

Art 126 of the Withdrawal Agreement provides for a transition or implementation period between 1 Feb and 31 Dec 2020 during which time European Union law will continue to apply to the UK.  That is implemented by s.1 of the European Union (Withdrawal Agreement) Act 2020 which inserts a new s.1A into the European Union Withdrawal Act 2018 suspending the repeal of the law-making provisions of the European Communities Act 1972 until the end of the transition period,   Title IV of the Agreement contains provisions converting EU trade marks and registered Community designs and Community plant varieties into British trade marks, registered designs and plant breeders; rights from 1 Jan 2021.   I discussed those provisions while they were in draft form in The Intellectual Property Provisions of the Draft Withdrawal Agreement on 19 Nov 2018.

The upshot is that Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark OJ L 154, 16.6.2017, p. 1–99, Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs OJ L 3, 05/01/2002 P. 1 - 24 and Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights OJ L 227, 1.9.1994, p. 1–30 continue to apply to the UK until 31 Dec 2020.  As the Intellectual Property Office's news story, Intellectual property and the transition period published 29 Jan and updated 31 July 2020, points out, EU trade marks and Community designs and plant varieties remain in force. International registrations for trade marks and designs protected via the Madrid and Hague systems which designate the EU will continue to extend to the UK.  The courts of the UK that have been designated EU Trade Mark and Community Design courts will retain their jurisdiction for the rest of the year.

The same applies to other EU legislation including Regulation (EC) No 469/2009 on supplemental protection certificates for medicinal products and Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market and to rules of law such as the exhaustion of rights doctrine. Judges in the UK can continue to refer questions of EU law to the Court of Justice of the European Union for preliminary rulings under art 267 of the Treaty on the Functioning of the European Union.  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 will continue to apply.

These arrangements will end on 31 Dec 2020  but most rights holders will continue to be protected.  Instead of their EU trade marks and registered Community designs and plant varieties, proprietors will rely on their equivalent UK intellectual property rights.  A new British supplemental unregistered design right will apply to designs that are protected as unregistered Community designs. Proprietors of plant protection and medicinal product inventions may continue to apply for supplemental protection certificates.   These and other matters are discussed in greater detail in my article of 19 Nov 2018

In that article I wrote:
"The draft withdrawal agreement makes no provision for the Unified Patent Court Agreement which is awaiting German ratification. However, if Germany ratifies the Unified Patent Court Agreement during the implementation period there would appear to be no reason why that agreement should not come into force during that period, What would happen after that will depend on the terms of the UK's future relationship with the EU."
According to Geoffrey Bacon of Bristows, there are indications that the German Federal Constitutional Court could deliver judgment on a challenge to German ratification of the Unified Patent Court Agreement in the next few weeks (see Bacon Update on BVerfG cases allocated to Justice Huber, the UPC case rapporteur 23 Jan 2020 Bristows UPC website).  The European Patent Office has confirmed its readiness to grant unitary patents. Decisions on continued British participation and probably the future of the project will, therefore, have to be made before the end of this year.

Anyone wishing to discuss this article or IP and British withdrawal from the EU generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Thursday, 30 January 2020

The European Union (Withdrawal Agreement) Act 2020


Standard YouTube Licence

Jane Lambert

The European Union (Withdrawal Agreement) Act 2020 received royal assent on 23 Jan 2020 and is now law. Its purpose is "to implement, and make other provision in connection with, the agreement between the United Kingdom and the EU under Article 50 (2) of the Treaty on European Union which sets out the arrangements for the United Kingdom's withdrawal from the EU". It consists of 42 sections divided into 5 parts with 5 schedules.

It will be recalled that the withdrawal agreement addresses citizen's rights, the border between Northern Ireland and the Irish Republic and the United Kingdom's contribution to the EU budget.  It also provides for an implementation period during which time the UK remains a member of the customs union and single market but ceases to be part of the EU. Accordingly, EU law continues to apply to the UK even though HM government will have ceased to be represented on the European Council and there will be no members of the European Parliament from the UK. The agreement is accompanied by the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom.  The implementation period was intended to run from 29 March 2019 until 31 Dec 2020 but as the date of the UK's departure has been extended three times it will now last 11 months from 31 Jan to 31 Dec 2020.

Part 1 of the Act amends the European Union Withdrawal Act 2918 by inserting three new sections and one new Part into Schedule 2 of the 2018 Act.  Those new sections are s.1A which suspends the repeal of the European Communities Act 1972 during the implementation period, s.1B which makes further provision for the preservation of EU law during that period, and s.8A which enables ministers to make regulations to modify EU legislation after the end of the implementation period.  The new Part 1A confers a similar power on the devolved authorities which will apply two years after the end of the implementation period. 

S.5 of the European Union (Withdrawal Agreement) Act 2020 inserts a new s.7A into the European Union Withdrawal Act 2018 which transposes the provisions of the withdrawal agreement into English and Welsh, Scots and Northern Irish law.  S.6 inserts a new s.7B which makes similar provision in relation to agreements with Iceland, Liechtenstein and Norway and Switzerland on the UK's withdrawal from the European Economic Area.

Part 3 of the Act (s.7 to s.17) deals with citizens' rights.  S.18 inserts a new s.8B into the European Union Withdrawal Act 2020 which allows ministers to make further regulations in relation to separation issues.  S.20 provides for the funding of the UK's contribution to the EU budget.  S.21 inserts a new s.8C and s.22 a new Part 1C into Schedule 2 of the European Union Withdrawal Act 2018 to implement the protocol on Northern Ireland in the withdrawal agreement.   S.23 and Schedule 3 continues the safeguards in the Belfast Agreement. S.24  continues cooperation between the United Kingdom and Northern Ireland with the Republic of Ireland.

Perhaps the most important of the remaining provisions of the act is s.33 which inserts a new s.15A into the European Union Withdrawal Act 2020 preventing ministers from agreeing to extensions of the implementation period.  Any such extension will, therefore, require primary legislation which should not be a problem given the government's commanding majority in the House of Commons.

Anybody wishing to discuss this article or the UK's withdrawal from the EU generally may call me on 020 7404 5252 during office hours or message me through my contact form.

Friday, 17 January 2020

The UK's Future Relationship with the EU - The Commission sets out its Negotiating Position

Michel Barnier
Author Foto-AG Gymnasium Melle
 Licence CC BY-SA 3.0
Source Wikimedia Commons

















Jane Lambert

I have updated my pages on the European Union (Withdrawal Agreement) Bill which will ratify the draft agreement of 19 Oct 2019 on the terms of the United Kingdom's withdrawal from the European Union and the negotiations on the UK's future relationship with the EU in accordance with the political declaration.  The bill completed its committee stage in the Lords and I have linked to the reports of the debates in Hansard.  In the future relationship page, I have inserted links to the Commission's and the British government's press releases on Mr Johnson's meeting with President von der Leyen in London on 8 Jan 2020, transcripts of the President's press conference with the Irish Taoiseach or prime minister and Monsieur Michel Barnier's speech at the European Commission's representation in Stockholm on 9 Jan 2020.

In his speech, Monsieur Barnier described the withdrawal agreement as a kind of divorce:
"We have now organised an orderly divorce. But now, the UK will automatically, mechanically, legally, leave 600 international agreements.
And we will have, together – EU and UK, and the UK for its part, alone – to rebuild everything. That is what is at stake for the next stage of the negotiations.
So we have a huge amount of work ahead of us if we are to secure an ambitious new partnership between the EU and the UK."
He warned:
"If we fail, the transition period will end on 1 January 2021 without any arrangements for a new future relationship in place.
  • This would not affect the issues covered in the Withdrawal Agreement: the financial settlement, and, thankfully, the deal we have reached on the island of Ireland and on citizens would still stand.
  • But it would mean the return of tariffs and quotas: a total anachronism for interconnected economies like ours."
So, the European Commission is already preparing for the negotiations and has prepared documents on its position on
I shall be discussing some of those documents - in particular, those relating to intellectual property and data protection - in more detail in this and related publications over the next few months.

In his Stockholm speech, Monsieur Barnier said:
"Yes, the UK represents 9% of all EU27 trade.
But more significantly, the EU27 accounts for 43% of all UK exports and 50% of its imports.
So, it is clear that if we fail to reach a deal, it will be more harmful for the UK than for the EU27.
All the more so because EU Member States can rely on each other or on the many other partners that the EU has free trade agreements with."
It is important to note that the EU did not cave in to British demands over Northern Ireland.  It was, as the DUP have said many times, the other way round.

Anyone wishing to discuss this article or brexit generally should call me on +44 (0)20 7404 5252 during normal business hours or send me a message through my contact page.

Thursday, 9 January 2020

The UK's Future Relationship with the EU - Ursula von der Leyen's Speech and Meeting with Johnson


Standard YouTube Licence

Jane Lambert

If the draft agreement on the terms of the UK's departure from the European Union is ratified, that country will cease to be a member state of the European Union at 23:00 on 31 Jan 2020.  The European treaties and legislation will continue to apply to the UK until 31 Dec 2020.  Thereafter a new relationship will subsist between the UK and the remaining member states.

The nature of that relationship will depend on negotiations between the British government and the Commission which can begin only after the UK leaves the EU. Some indication as to the parties' aspirations can be gleaned from President Ursula von der Leyen's speech at the London School of Economics on 8 Jan 2020 and the press release of her meeting with Mr Boris Johnson that took place later that day.

In her speech, President von der Leyen warned that any future relationship between the UK and EU cannot and will not be the same as before. She continued that it cannot and will not be as close as before
"because with every choice comes a consequence. With every decision comes a trade-off. Without the free movement of people, you cannot have the free movement of capital, goods and services. Without a level playing field on environment, labour, taxation and state aid, you cannot have the highest quality access to the world’s largest single market.  The more divergence there is, the more distant the partnership has to be."
The President added that without an extension of the transition period beyond 2020, agreement on every single aspect of the new partnership cannot be expected and that parties would have to prioritize. The EU's objectives will be to work for solutions that uphold the integrity of the EU, its single market and its customs union and on that, there can be no compromise.

The press release stated that the Prime Minister was ready to start negotiations on the future partnership and Canada-style FTA as soon as possible after 31 Jan.  That did not sound a million miles away from the President's position:
"But we are ready to design a new partnership with zero tariffs, zero quotas, zero dumping. A partnership that goes well beyond trade and is unprecedented in scope. Everything from climate action to data protection, fisheries to energy, transport to space, financial services to security. And we are ready to work day and night to get as much of this done within the timeframe we have."
For the rest of this year, this blog will monitor the negotiations for the UK's future partnership with the EU on the New Relationship Negotiations page as well as the progress of the European Union (Withdrawal Agreement) Bill and negotiations for new trade agreements with the USA and other third countries.

Anyone wishing to discuss this article or the consequences of the UK's withdrawal from the EU generally may call me on +44 (0)20 7404 5252 during normal UK office hours or send me a message through my contact form.

Wednesday, 8 January 2020

European Union (Withdrawal Agreement) Bill - Index Page

Author O Flammger London (Stengel & Co. Dresden)
Source Wikipedia, The Palace of Westminster













Jane Lambert

On 19 Oct 2019 HM Government negotiated a draft agreement on the terms of the UK's withdrawal from the European Union and a political declaration setting out the framework for the UK's future relationship with the EU in accordance with art 50 (2) of the Treaty on European Union which I discussed in The Revised Draft Withdrawal Agreement and Political Declaration on 21 Oct 2019.  The UK will leave the EU in accordance with art 50 (3) of the Treaty when this Agreement comes into effect.  In order to come into effect, the agreement must be ratified by the UK Parliament.

A bill to ratify the agreement known as the European Union (Withdrawal Agreement) Bill was introduced in the last Parliament which I discussed in the European Union (Withdrawal Bill on 22 Oct 2019.  The Bill received a second reading but MPs could not accept the very tight time limits for debate in a programme motion. The Bill was withdrawn and a general election was held in which the public was given a choice between parties with very different positions on brexit.  The Conservatives favoured withdrawal on the terms of the draft agreement, the Labour Party favoured negotiating an alternative agreement the terms of which were to be put to the public in a second referendum, the Liberal Democrats favoured withdrawing the notice to quit the EU and the Brexit Party favoured leaving the EU with no withdrawal agreement at all.

The election was won by the Conservative Party which introduced a new European Union (Withdrawal Agreement) Bill on 19 Dec 2019.  The new Bill was similar but not identical to the previous one and I discussed those similarities and differences in European Union (Withdrawal Agreement) Bill Second Time Around on 22 Dec 2019.  That Bill received its second reading on 20 Dec 2019 (see Hansard 2nd reading) and is now in committee.  To assist readers to follow the progress of the legislation I have created an index page on the Bill which will be updated regularly.  Readers may wish to bookmark this page and return to it from time to time until the Bill becomes law.

Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 or get in touch through my contact page.

Thursday, 2 January 2020

Brexit Briefing December 2019

Results of the 2019 General Election
Author Brythones























Jane Lambert

Having won the 2019 general election, the government has the votes to enable the European Union (Withdrawal Agreement) Bill to pass without substantial amendment. It is therefore likely that the United Kingdom will leave the European Union at 23:00 on 31 Jan 2020 upon the terms of the draft withdrawal agreement of 19 Oct 2019.  I discussed the Bill in European Union (Withdrawal Agreement) Bill Second Time Round on 22 Dec 2019 and the agreement in The Revised Draft Withdrawal Agreement and Political Declaration on 21 Oct 2019.

While that is not the outcome for which many businesses, politicians and individuals had hoped and campaigned since the 2016 referendum, it does at least bring certainty.  The UK's departure from the EU on 31 Jan 2020 will be followed by an 11 month implementation period during which EU law will remain in force at the end of which there will be a new relationship with the 27 remaining EU member states. The precise nature of that relationship is not yet clear but the parties have agreed a Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.

Clause 33 of the Bill will insert a new s.15A into the European Union (Withdrawal) Act 2018 which will prevent ministers from agreeing to any extension of the implementation period. Previous free trade agreements between the EU and third countries have taken years to negotiate.  While there is nothing to prevent negotiations on a new relationship between the UK and EU from continuing after the 31 Dec 2020 the legal framework between the parties that is to be preserved by the withdrawal agreement will fall away at the end of this year unless something is agreed to continue or replace it.  That could be just as disruptive for businesses and individuals in the UK and the remaining member states as British withdrawal from the EU without a withdrawal agreement would have been.

Over the coming months, this publication will monitor negotiations between the UK and EU on the future relationship.  It will report changes in the law, particularly those relating to intellectual property. It will look out for any opportunities that may arise from the UK's departure from the EU such as new trade agreements with the USA and other countries.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 or send me a message through my contact form. 

Sunday, 22 December 2019

European Union (Withdrawal Agreement) Bill Second Time Round

Author O Flammger London (Stengel & Co. Dresden)
Source Wikipedia, The Palace of Westminster


















Jane Lambert

On 21 Oct 2019, the government introduced the European Union (Withdrawal Agreement) Bill.  I discussed it here in European Union (Withdrawal Agreement) Bill 22 Oct 2019. The bill was given a second reading but then withdrawn because Parliament would not approve the government's timetable that allowed very little time for debate. Because there was a very real risk of the country's withdrawing from the European Union without a withdrawal agreement in place, the government and most of the opposition parties enacted legislation that permitted an early general election.

As everybody knows, that election was held on 12 Dec 2019 and the government was returned with a large parliamentary majority. The government had campaigned on the promise to enact legislation that would effect the departure of the UK from the EU in accordance with the draft withdrawal agreement of 19 Oct 2019,  Such legislation was introduced into the Commons on 19 Dec 2019 and given its second reading the next day.  Its title is the European Union (Withdrawal Agreement) Bill 2019-20. Its text as introduced is here together with explanatory notes. a delegated powers memorandum, notices of amendments, a Human Rights Act memorandum and a briefing paper on the new bill by Graeme Cowey entitled The new EU (Withdrawal Agreement) Bill: What’s changed? which has been deposited in the House of Commons Library.

The new bill is not dissimilar to the old one but there are some differences that have been helpfully identified in the briefing paper.  Mr Cowie has identified the removal of clauses:
  • "giving MPs a veto over any Minister agreeing to an extension of the transition or implementation period in the Joint Committee (what was clause 30);
  • giving MPs a veto over the start of future relationship negotiations with the EU, an approval role in relation to the Government’s negotiating mandate, and an enhanced Parliamentary approval process for any future relationship treaty subsequently negotiated with the EU (what was clause 31); and 
  • providing additional procedural protections for workers’ rights that currently form part of EU law, but which would not be protected against modification, repeal or revocation in domestic law once the transition or implementation period has ended (what was clause 34 and Schedule 4)."
He has spotted the addition of the following new clauses:
  • "reporting requirements to Parliament where the Joint Committee’s dispute procedures are used (new clause 30);
  • prohibiting any UK Minister from agreeing to an extension of the transition or implementation period in the Joint Committee (new clause 33);
  • prohibiting UK Ministers from using the written procedure to take decisions in the Joint Committee (new clause 35);
  • the repeal of statutory provisions the Government maintains are now unnecessary or spent (new clause 36); and
  • removing (via clause 37) the Government’s existing obligations (under section 17 of the EUWA) with regard to unaccompanied children seeking asylum in the EU who have family members in the UK. This would be replaced with a duty to make a policy statement to Parliament within 2 months of the Act passing."
Mr Cowie has noted the amendment of the following clauses:
  • "Clause 20 (7) in the October WAB would have allowed a Minister of the Crown to extend the life of the standing service provision (under which the UK would make financial payments to the EU) beyond March 2021. The Government has removed the power to extend that provision in the current version of the Bill.
  • Clause 26 has a new subsection (1). This provision allows Ministers, by regulations, to specify the circumstances in which lower courts could depart from the rulings of the Court of Justice of the European Union (CJEU) after the transition or implementation period. Without this new provision, lower courts would have had to follow the UK Supreme Court’s rulings (and the High Court of Justiciary’s rulings in Scotland) on retained EU law, but otherwise would have to follow CJEU rulings unless and until the substance of domestic law changed or those higher courts had departed from the rulings of the CJEU.
  • Clause 29 provided a role for the House of Commons’ European Scrutiny Committee in relation to developments in EU law of “vital national interest” to the UK during the transition or implementation period. However, the October WAB made no provision for the House of Lords in this regard. New subsections 3-4 in the December WAB give an equivalent role to the European Union Committee of the House of Lords.
  • Paragraph 10 of Schedule 2 previously would have prohibited the Independent Monitoring Authority from delegating certain of its functions to a committee, member or employee. Two functions that were prohibited in the October version of the WAB, but which are not in the December version, concern decisions to carry out inquiries or to intervene in legal proceedings. New paragraph 39 would also make it possible to transfer the functions of the IMA to another public body by regulations."
Mr Cowie reminds the public that the House of Common Library produced a series of insights and briefing papers on the old bill. Many of these remain relevant and useful but Mr Cowie counsels caution as there have been changes. In the briefing paper, he mentions the details that have changed as well as those that remain the same.

Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form. 

Tuesday, 3 December 2019

Brexit Briefing November 2019

Author Sgt. Tom Robinson RLC/MOD
Licence OLG v.1.0
Source Wikipedia 10 Downing Street














Jane Lambert

Voters' options have narrowed since my October Brexit Briefing and, consequently, so do the likely outcomes of this election. That is why there is a November Brexit Briefing even though I said it was unlikely that I would publish one last month.

The parties have clarified their positions.   The Brexit Party is fielding candidates only in a minority of seats.  There is no longer any possibility of its forming a government.  Consequently, there is no prospect of our leaving the EU without a withdrawal agreement within the meaning of art 50 (2) of the Treaty on European Union.  Having said that, the Conservatives have announced that they will not seek an extension to the implementation period provided by art 126 of the draft withdrawal agreement after 31 Dec 2020. As it would be difficult to negotiate a comprehensive free trade agreement between the 31 Jan and 31 Dec 2020, the effect may be the same. The Labour Party has promised a referendum after renegotiating a withdrawal agreement that would align the UK closer to the European Union in which its Prime Minister would be neutral.  The leader of the Liberal Democrats has acknowledged that she is unlikely to form the next government which means that revocation of the government's notice of intention to leave the EU of 29 March 2017 is also unlikely.

As the opinion polls have consistently shown the Conservatives significantly ahead although their lead appears to have diminished recently, the likely outcomes are an overall majority for the Conservative Party - though perhaps not a very big one - or a hung Parliament.   If the Conservatives win an outright majority, they have promised to introduce legislation to ratify the draft withdrawal agreement before the end of the year.   If there is a hung Parliament in which either Conservatives or Labour emerge as the largest party, there is an outside chance that a minority administration may feel obliged to concede a second referendum.

Meanwhile, the rest of the EU is reforming intellectual property law.  In patents, the Council and Parliament adopted Regulation 2019/933 which should stimulate European generics and biosimilar companies by allowing them to manufacture for export to third countries or stockpile for launch while a supplementary protection certificate subsists. HM government appears to like that Regulation for it held a consultation on that Regulation's implementation after brexit (see my article Supplementary Protection Certificates - The Waiver Regulation 27 Nov 2019 NIPC Law).  In copyrights, the European Parliament and Council have adopted Directive 2019/790 on copyright and related rights in the Digital Single Market which should benefit data mining technologies and content providers.  Even though it is binding on the UK and could well benefit data mining and creative industries here has been very little discussion on the legislation in this country.

Anyone wishing to discuss this article should call me on 020 7404 5252 during office house or send me a message through my contact form.

Friday, 1 November 2019

Brexit Briefing October 2019

Author Toby Ord  Licence CC BY-SA 2.5  Source Wikipedia Halloween




















Jane Lambert

The UK did not leave the European Union at 23:00 last night for the reasons I explained in Johnson accepts art 50 (3) Extension of 28 Oct 2019 and it is unlikely to do so until after 13 Dec 2019 at the earliest.  Instead, there is to be a general election on 12 Dec 2019.  Brexit is undoubtedly an issue in that election and at present, it is probably the most important one but that may change as the campaign develops.

Voters have a clear choice between:
Business owners and members of the public at large will have to decide for themselves which works best for them when casting their vote. Regardless of their personal preferences, they will have to watch the campaign and follow the polls closely so that they can take investment decisions that will take advantage of, or protect their business from, the consequences of a particular outcome. For instance, if they envisage that the election will result in an environment that will make it harder or more expensive to conduct business with the 27 remaining member states from the UK they may wish to accelerate the transfer of part of their undertaking to one of those remaining member states.

As this is a legal and not a political blog I do not expect to say much on the campaign.  Indeed, there is unlikely to be a November Brexit Briefing or anything else until after 13 December 2019. Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Monday, 28 October 2019

Johnson accepts Art 50 (3) Extension

Rt Hon Boris Johnson MP
Licence OGK V 3














Jane Lambert

Art 50 (3) of the Treaty of European Union provides that the European treaties will cease to apply to a state that gives notice of its intention to withdraw from the European Union from the date an agreement on the terms of its withdrawal comes into force or two years from its notification unless the European Council, in agreement with the Member State concerned, unanimously decides to extend that period.

Although a draft withdrawal agreement was reached by negotiators for the British government and the European Union on 14 Nov 2018, it was rejected by the United Kingdom Parliament on no less than three occasions.  As a result of those rejections, the government of the United Kingdom requested and was granted two extensions the latter of which was due to end at 23:00 on 31 Oct 2019.

Largely as a result of concessions that would result in an internal frontier within the United Kingdom, the British government has negotiated a second withdrawal agreement.  That has still to be approved by the Commons in a meaningful vote though the European Union (Withdrawal Agreement) Bill which would implement the agreement has got as far as second reading.

Under the provisions of the European Union (Withdrawal) (No 2) Act 2019 the prime minister was obliged to apply for a further extension if a withdrawal agreement was not approved by a meaningful vote on 19 Oct 2019, The prime minister complied with that obligation with less than the best of grace. Today the Council consented to the extension request in accordance with art 50 (3). Had it not been the European Union (Withdrawal) (No 2) Act 2019 the British government could have declined the offer of an extension but the statute removes his right to do so.  By a letter dated 28 Oct 2019, the prime minister has grudgingly accepted the offer of an extension until 31 Jan 2020.

As there are probably enough Labour MPs who would vote for the withdrawal agreement but nowhere near enough who would vote for a second referendum the overwhelming likelihood is that the second withdrawal agreement would be approved with the result that the UK would have left the European Union in the next few weeks.   The only way to stop it would be to hold a general election at the earliest possible moment and hope that parties in favour of remaining in the EU will improve sufficiently on their performance in 2017 to force a second referendum if not an outright revocation of the notice to withdraw.  That is an enormous longshot for the remain parties and it is not one that is likely to be understood easily by the public.   However, it is the only option that they have left.

Anyone wishing to talk about the prime minister's acceptance of an extension or brexit generally is welcome to call me on 020 7494 5252 during office hours or send me a message through my contact page.

Brexit Briefing January 2020

Hey @BorisJohnson and @Nigel_Farage , we just made Big Ben bong for you😉. Sound on. pic.twitter.com/6wnxYi9BOU — Led By Donkeys (@ByDon...