British Proposals for Renegotiating the Northern Ireland Protocol

Author Heenah Licence CC BY-SA 4.0 Source Wikimedia Commons

 

Jane Lambert

The pickle in which HM government finds itself over the Northern Ireland Protocol to the agreement between the EU and the UK for the UK's withdrawal from the European Union was hardly unexpected. If there is to be regulatory divergence between the UK and the EU there have to be customs inspections and formalities somewhere.  If the re-establishment of customs posts on the border between the Republic of Ireland and Northern Ireland is unacceptable to this country's European and American allies, then inspections and formalities have to take place between Great Britain and both parts of the island of Ireland.

Immediately after the end of the implementation or transition period provided by art 126 of the withdrawal agreement, there was disruption in the supply of goods from Britain to Northern Ireland.  These led to street protests and calls for the denunciation of the Protocol if not the whole of the withdrawal agreement.  But there are signs that Northern Ireland retailers are sourcing more and more products from within Northern Ireland, the Republic or the rest of the EU.  That is, of course, weakening economic ties with Great Britain and strengthening ties with the Republic. Ultimately that could lead to the cession of Northern Ireland to the Irish Republic. While Irish unification would be welcomed by some in Great Britain it would be regarded as a calamity not only by Northern Ireland Unionists but also by many members of the British Conservative and Unionist Party.   

Mrs Theresa May was offered an arrangement similar to the Northern Irish Protocol but she rejected it on the ground that it was something that no British Prime Minister could accept.  That raises the question of why her immediate successor did just that.  Para 13 of the UK Government position paper Northern Ireland Protocol: the way forward (CP 502) published on 21 July 2021 offers the following explanation:

"However Parliament’s insistence in the BennBurt Act that the UK could not leave the EU without an agreement radically undermined the Government’s negotiating hand; and the final compromise, while delivering the fundamental aim of a clear Brexit, and recognisably based on the UK’s proposal, included several elements which would prove to cause difficulties subsequently: notably, though not only, the EU’s insistence on customs arrangements between Great Britain and Northern Ireland, with detail to be worked out subsequently; and the failure to provide for Northern Ireland’s consent to enter the arrangements."

That does not make a lot of sense.  Had the government's negotiating hand not been "undermined" the government would have been free to take the United Kingdom out of the EU without any agreement on anything including the border between the Irish Republic and Northern Ireland.  That would inevitably have led to border controls and probably security forces to protect them.

The doleful consequences of the Protocol are summarized in para 20 of the position paper:

"Supply chains have been disrupted and costs increased, with staff redeployed to deal with new bureaucracy, impacting investment and growth. Consumers have seen real impacts: at least 200 companies in Great Britain have stopped servicing the Northern Ireland market; plants and trees long-sourced from Great Britain can no longer be stocked in nurseries or garden centres in Northern Ireland; supermarkets have reduced their product lines due to the delays and barriers in moving goods; and the costs of deliveries for those who do serve the market have continued to increase. The effects are felt more broadly too. Medicines are at risk of discontinuation because the hurdles to clear to reach the small Northern Ireland market make supply unviable. And pet owners, including those reliant on assistance dogs, have faced the prospect of unnecessary vaccinations and treatments, and bureaucratic certification hurdles simply to travel within the United Kingdom."

If this is true, the Northern Irish Protocol is clearly not working for the benefit of British suppliers to Northern Ireland but that does not mean that consumers in that province are going hungry.  There are signs that supplies from Great Britain are being replaced by supplies from Ireland and other EU member states (see InterTradeIreland Cross-Border Trade & Supply Chain Linkages Report).

In the position paper, the government is threatening to invoke art 16 of the Protocol.   It is hard to see how that will help.  The first paragraph of the article provides:

"If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It would appear that "safeguard measures" taken under this article are to be proportionate, short-term and to be taken only in an emergency.  If such measures lead to an imbalance between the rights and obligations under this Protocol, the other party may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance in accordance with art 16 (2).  Extensive consultations are required before a party may resort to art 16.

The revision to the Protocol that the British government appears to want is inspection-free entry of goods that are intended for consumption in Northern Ireland and full controls for goods intended for the Republic and beyond.   How this would work is not clear because most exporters to the Republic would be expected to choose the M4 to Fishguard or the A55 to Hollyhead rather than the long drive to Cairnryan. The only advantage of the latter would be the opportunity to smuggle. 

The other concession that the government seeks is to remove the resolution of disputes from the jurisdiction of the Court of Justice of the European Union. As EU law applies to the Protocol it is unlikely that there can be much movement there.

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

Commission Position Paper on Data Protection and Protection of Information obtained or processed before the Withdrawal Date

Jane Lambert

On 6 Sept 2017, the Commission's Art 50 TaskForce published a position paper that had been transmitted to the 27 remaining states on the use of data and protection of information obtained or processed before the withdrawal date. That document contains the main principles of the EU position in that regard.

The Commission's starting point is that "the United Kingdom's access to networks, information systems and databases established by Union law is, as a general rule, terminated on the date of withdrawal." Such access may continue only if we fulfil the conditions set out in the position paper.

 The first of those conditions is that

"The provisions of Union law on personal data protection applicable on the withdrawal date should continue to apply to personal data in the United Kingdom processed before the withdrawal date and pertaining to

(i) data subjects in the EU27,
(ii) data subjects outside the Union,

to the extent that this data is covered by Union law on personal data protection before the withdrawal date." 

Those provisions will be contained in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("the General Data Protection Regulation") and Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA ("the Data Protection Directive"). Since the Data Protection Bill will preserve the provisions of the GDPR and the Data Protection Directive in national law after our withdrawal from the EU, that condition should not be a stumbling block.

The Commission also requires the United Kingdom Government to protect European Union and national classified information after we leave the EU to the extent that it does so now. That includes obliging contractors and sub-contractors to comply with those requirements. Again, the Commission appears to be pushing at an open door for the Department for Exiting the European Union has already indicated in the UK position paper Confidentiality and access to documents that:

1. The UK recognises the importance of continuing to respect obligations of confidentiality and to protect information exchanged while it was a Member State. 
2. The UK considers that arrangements agreed with respect to confidentiality and the handling of information produced while it was a Member State should be reciprocal, affording an equivalent level of protection to the UK and the EU after the UK’s withdrawal. 
3. These protections should be equivalent to those set out in the existing regimes.

In principle, the positions of the Task Force and British Government on data protection and the protection of classified and other restricted information do not seem too far apart. The Commission has combined data protection and protection of classified information in one document whereas the DExEU has addressed those topics in two separate position papers. However, problems may emerge when it comes to details such as whether the Commission will expect the UK to abide by decisions of the Court of Justice on the interpretation of the GDPR or other legislation after we leave the EU.

Anyone wishing to discuss this article or any other matter relating to Brexit should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Commission Position Paper on Intellectual Property Rights including Geographical Indications

Jane Lambert

Even before the EU referendum, IP lawyers in the United Kingdom wrote articles and gave talks on what would happen to intellectual property rights if we voted to leave the EU. I penned my first thoughts in Were we to go - what would Brexit mean for IP? 26 Feb 2016 NIPC Law and returned to the subject immediately after the referendum in What Sort of IP Framework do we need after Brexit and what are we likely to get? 3 July 2016. I have written a lot of other articles on the subject since then many in the context of the unitary patent and the Unified Patent Court,  as have a lot of other people. However, until today we did not know much about the thinking of the Commission and the remaining 27 member states.

Now we have a position paper dated 6 Sept 2017 from the European Commission, Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU which has been transmitted to the remaining member states on Intellectual property rights (including geographical indications) for discussion today. It is not a particularly weighty document either in the word count or in its ideas. Above all, it does not address the issue upon which businesses upon both sides of the English channel (and indeed the rest of the world) want an answer namely, can a way be found to keep the United Kingdom in the Unified Patent Court and unitary patent system if we leave the European Union?

The document, which is 5 pages long including the cover page, begins with the following statement:

"The withdrawal of the United Kingdom from the European Union will create uncertainty for UK and EU27 stakeholders alike in relation to the scope of protection in the United Kingdom of certain intellectual property rights; to the treatment of applications for certain rights and to the exhaustion of rights conferred by intellectual property rights. This uncertainty will significantly affect the conditions under which goods that are placed on the market in the Union before the withdrawal date could continue to circulate between the EU27 and the UK."

Well, they can say that again.  I don't think even the most extreme Eurosceptic would disagree with that.

They suggest that any withdrawal agreement that we make with the remaining member states should ensure that:

"(a) the protection enjoyed in the United Kingdom on the basis of Union law by both UK and EU 27 holders of intellectual property rights having unitary character within the Union before the withdrawal date is not undermined by the withdrawal of the United Kingdom from the European Union;
(b) procedure-related rights (e.g. right of priority) in relation to an application for an intellectual property right having unitary character within the Union still pending on the withdrawal date are not lost when applying for an equivalent intellectual property right in the United Kingdom;
(c) applications for supplementary protection certificates or for the extension of their duration in the United Kingdom on-going before the withdrawal date are completed in accordance with the conditions set out in Union law;
(d) databases protected in the EU27 and the UK before the withdrawal date continue to enjoy protection after that date and
(e) exhaustion before the withdrawal date within the Union of the rights conferred by intellectual property rights is not affected by the withdrawal of the United Kingdom from the European Union."

I think the EU negotiators will find themselves pressing on an open door for most if not all of that.

My heart leapt a little when I saw the paragraphs headed "Intellectual property rights having unitary character within the Union" and  "Applications for Intellectual property rights having unitary character within the Union" because the words "unitary patent" are a shorthand for the expression "European patent having unitary effect". It sank, however, when I read the text of those paragraphs because the Commission seeks only the transposition of rights granted under EU regulations into national law and that is going to happen automatically under the European Union (Withdrawal) Bill.

As the Intellectual Property Bar Associaton ("IPBA"), of which I am a member, said at paragraph 10 of Paper 16 of the Brexit Papers on Intellectual Property:

"Intellectual property services are currently a flourishing area in the UK and the UK has significant influence in this area. Rights are well protected but subject to sensible defences. The intellectual property bar is very active and the excellence of the courts is widely appreciated, making a significant positive contribution."

The IPBA suggested that the UK Government should do the following to ensure that that remains the case:

 Securing rights to provide professional services
1. Rights of representation/practice - The IPBA joins and endorses the recommendations and requests set out in the Bar Council Position on Access to the EU Legal Services Market Post-Brexit.

1.1.1 UK as forum of choice - HMG should explore ways to ensure that the UK retains its position as a forum of choice for intellectual property matters in Europe. This should include steps to ensure that the UK remains more efficient and quicker as a litigation forum than other EU countries and EU courts. It should also include attempts to ensure that the UK is able fully to participate in the UPC post-Brexit and that, if the UK is not able to do so, the UK is nonetheless well-placed to remain a first-choice forum for resolution of patent disputes in Europe.
1.1.2 Prioritisation - HMG should ensure that the area of specialist legal services, including rights of representation in intellectual property cases, is given no less priority than that given to any other area of services provision in Brexit negotiations in which rights of access to the EU may be important.
1.1.3 Avoidance of approaches to Brexit which would be most likely to damage this sector - The UK should avoid any general approach to Brexit which would make such arrangements harder to secure. 

2. Ensuring that post-Brexit there is equivalent protection for intellectual property in the UK as currently exists under harmonised EU law, that there is no gap in protection with regard to existing rights and that defences which currently exist to infringement of intellectual property rights continue to apply unless and until specifically altered.

2.1. Ensuring continuing influence on substantive and procedural EU law which may affect industry in the UK. 2.1.1. HMG should take steps to ensure that the UK perspective continues to be heard by EU legislative and judicial authorities, where decisions are made that may have an impact on UK law and practice.
2.1.2. This may involve ensuring that HMG makes timely responses to EU consultations on legislative change and that it intervenes (and ensures generous rights of intervention for others) in CJEU cases which may have a direct impact on UK undertakings and an indirect impact on UK law after Brexit."

The IPBA has said that we would be happy to assist HMG in formulating appropriate strategies to that end. The government would be wise to take up that offer. If there is one thing that barristers know a lot about, it is negotiation.

Should amplification or clarification of any part of this article be required, call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Post Script

The Chartered Institute of Patent Attorneys are much more kind to the Commission's position paper than I have been (see CIPA welcomes EC Position on IP Rights - Post Brexit 7 Sep 2017). The Institute's President, Tony Rollins, says:

“The paper only deals with EU unitary rights, that is, trade marks, registered and unregistered designs, plant variety rights and protected geographical indications, and does not deal with patents.
“This is because the European patent system is not a European Union institution and so will be entirely unaffected by Brexit. For UK-based patent attorneys carrying out European patent work it will continue to be business as usual."

I do wish I could agree with him but I can't.  Regulations 1257/2012 and 1260/2012 are EU instruments, art 84 (1) of the UPC Agreement makes clear that it is open to signature only for EU member states and art 20 spells out:

"The Court shall apply Union law in its entirety and shall respect its primacy."

If it were otherwise, the optional Litigation Protocol to the European Patent Convention would have been up and running by now.