The United Kingdom Internal Market Bill

 

Author Henry Holbein

Jane Lambert

The publication of the UK Internal Market white paper on 16 July 2020 and the subsequent consultation that ended on 9 Sept 2020 must be one of the least publicized announcements of government policy ever.  Although I have received a lot of emails from the government about brexit ranging from customs arrangements to information for British citizens who wish to continue to live in different EU member states I can't trace any notification about this one.   I can find nothing about the white paper in the press in the days following its publication.  The white paper's publication seems to have escaped other bloggers' attention including Professor Grey whose Brexit Blog rarely misses a truck.

According to the explanatory notes on the United Kingdom Internal Market Bill, the purpose of the legislation is to implement the proposals set out in the white paper.  Those proposals are said to be driven by "three overarching policy objectives:

a. to continue to secure economic opportunities across the United Kingdom; 

b. to continue to increase competitiveness and enable citizens across the UK to be in an environment that is the best place in the world to do business; and 

c. to continue to provide for the general welfare, prosperity, and economic security of all UK citizens."

The bill has already received considerable attention because of the language of clause 45 (1) that certain provisions will have effect "notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent ."   As the Northern Ireland Secretary admitted, that provision will breach a treaty, namely the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community which Her Majesty's government signed and Parliament ratified just a few months ago.  That clause has led to resignations from the government and the senior civil service, threats of legal action from the Commission and warnings from the Speaker of the House of Representatives and other senior US politicians of both parties.

The title of the bill is curious because the United Kingdom is and always has been a unitary state albeit with devolved administrations in Belfast, Cardiff and Edinburgh.   It is important to stress than devolution is not the same as federalism which is the pooling of sovereignty by sovereign states.    Devolution is the delegation of central government functions which theoretically (and in the case of Northern Ireland) has actually been recalled.   The expression "internal market" was originally interchangeable with the term "single market" which was the process by which the EU member states entrusted the regulation of the EU economy to the Commission.   It is as odd for a nation state to describe its domestic economy as an "internal market" as it was for Thomas Cronwell to declare the southern part of an offshore island as "an empire" in The Ecclesiastical Appeals Act 1532.  Perhaps rather more absurd for the policy of 1532 statute was to assert that the King of England was equal to the Pope and Holy Roman Emperor.  Possibly equivalent to British negotiators' insistence in the new partnership talks that the 66 million inhabitants of the UK and the 450 million inhabitants of the remaining EU member states are sovereign equals. 

The bill consists of 54 clauses divided into 7 parts and 2 schedules.   Part 1 (clauses 1 to 14) and Schedule 1 is concerned with "UK Market Access Goods", Part 2 (clauses 15 to 21) with "UK Market Services", Part 3 (clauses 22 to 28) and Schedule 2 with Professional Qualifications and Regulation, Part 4 (clauses 29 to 39) with Independent Advice and Monitoring of the UK Internal Market, Part 5 (clauses 40 to 45) with Northern Ireland, Part 6 (clauses 46 to 47) with Financial Assistance and Part 7 (clauses 48 to 54) with Final Provisions.   My first impression on reading through this bill was that there was nothing in it that did not already fall within the scope of existing legislation except perhaps Part 5 in so far as this bill purports to resile from the UK's treaty obligations.  As I am about to lose my right to represent clients in the Court of Justice of the European Union, the Boards of Appeal of the EU Intellectual Property Office and the Unified Patent Court as well as my rights under the Legal Services Directive, I wondered whether Part 3 would entitle me to practise in Edinburgh or Belfasr but it is clear from Schedule 2 that it would not.

Anyone wishing to discuss this article or the bill in general may call me on 020 7404 5252 or send me a message through my contact form.

Agreement in Principle on a Comprehensive Economic Partnership with Japan

 

Japan from Space

Jane Lambert

It is good to report a smidgeon of good news in a week in which a Minister of the Crown admitted in the House of Commons that the British government intends to breach an international agreement that it entered on our behalf just a few months ago.  That smidgeon was the press release of 11 Sept 2020 by the Department for International Trade that an agreement for a UK-Japan Comprehensive Economic Partnership was reached in principle by the International Trade Secretary Liz Truss and Japan’s Foreign Minister Motegi Toshimitsu on a video call on 11 Sept 2020.

Now it must be emphasized that an agreement in principle is not the same as a signed treaty and that there can be many slipups between those two points.  Cynics might also say that the timing of the announcement of an agreement in principle at a time when relations with the remaining member states of the EU are deteriorating is not coincidental.  The claim to have secured a free trade agreement with Japan at this stage is premature and over-optimistic.  If the agreement is signed it will indeed be the UK's first major trade deal since it left the EU but it has to be remembered that Japan is only the UK's 13th largest market accounting for only US$8.3 billion or 1.8% of exports.

No draft treaty appears to be available at this stage but the press release contains particulars of the agreement in principle.  The following information will be of particular interest to intellectual property practitioners:

"Cutting-edge digital & data provisions that go far beyond the EU-Japan deal. These will enable free flow of data whilst maintaining high standards of protection for personal data. We have also committed to uphold the principles of net neutrality, as well as introducing a ban on data localisation, which will prevent British businesses from having the extra cost of setting up servers in Japan. This will help UK fintech firms operating in Japan - like Revolut and Transferwise - to innovate and grow."

That suggests some sort of accommodation for Japan in our data protection laws which may have consequences for data flows between Britain and the EU.

"New protection for more iconic UK goods – increasing geographical indications (GIs) from just seven under the terms of the EU-Japan deal to potentially over 70 under our new agreement, covering goods including English sparkling wine, Yorkshire Wensleydale and Welsh lamb. This would lead to improved recognition of key UK brands in the Japanese market."

This is interesting because nobody seems to know how geographical indications will be protected in the UK after 31 Dec 2020.  At present, the UK is committed to the continued protection of geographical indications by art 54 (2) of the Withdrawal Agreement.  However, Lord Frost has indicated that he wants to renegotiate the provisions for geographical indications but has not spelt out what sort of legal protection for GIs that he wants.  Readers will recall that I asked one of the officials who is negotiating our comprehensive economic partnership with Japan what sort of IP rights we could expect last month:

"I asked Olivia Wessendorff of the Department of International Trade, one of the negotiators for the free trade agreement with Japan, whether she could share any insight on the changes that the government desired (see Virtual Cambridge: Informa Connect's IP Law Summer School 2020 22 Aug 2020 NIPC Training). She replied that her department was not responsible for negotiations with the EU. The last she had heard the government intended to create a GI regime on the lines of the EU one." (see Jane Lambert Brexit Briefing Ausgust 2020 4 Sept 2020).

The press release also promises new protection for the creative industries in Japan:

"New protections for UK creative industries – British businesses can now be confident that their brands and innovations will be protected. We have gone beyond the EU on provisions that tackle online infringement of IP rights, such as film and music piracy."

Should the proposed agreement ever be signed with Japan I shall return to this topic. If the agreement requires legislation here or in Japan to implement the treaty, I will discuss them in this publication.

Anyone wishing to discuss this article or the proposed agreement may call me on +44 (0)20 7494 5252 during UK office hours or send me a message through my contact form.  

Brexit Briefing August 2020

Author  Pedroserafin  Licence CC BY-SA 3.0,

Jane Lambert

Talks on the new relationship continued between British and EU officials throughout August but without outwards signs of progress.  In a speech to the Institute of International and European Affairs published on 2 Sept 2020, Michel Barnier complained of the UK's failure to engage in discussions on:

• credible guarantees for open and fair competition particularly in state aid, labour and environment;
• fisheries; and
• dispute settlement.

Monsieur Barnier acknowledged the UK's avowed ambition for a clean break but noted that its negotiators wanted to keep many of the advantages of  EU membership such as transport, trading conformity assessment for its goods and police and judicial cooperation.  He also expressed concern at the British request to renegotiate indications provisions of the withdrawal agreement and at progress of implementing the Northern Irish protocol.

The British request to renegotiate the geographical indications provisions of the withdrawal agreement is curious because it is not clear what the British government wants to put in their place.  As she had mentioned GIs several times in her talk to the Informa IP Law Summer School, I asked Olivia Wessendorff of the Department of International Trade, one of the negotiators for the free trade agreement with Japan,  whether she could share any insight on the changes that the government desired (see Virtual Cambridge: Informa Connect's IP Law Summer School 2020 22 Aug 2020 NIPC Training).  She replied that her department was not responsible for negotiations with the EU. The last she had heard the government intended to create a GI regime on the lines of the EU one.

In his speech to the Institute Monsieur Barnier warned that from the 1 Jan 2021 British financial services firms will lose their passporting rights,  Britsh manufacturers' type approval will cease to be recognized and there will be customs formalities at all EU ports and airports even with the most favourable trade deal.  The Britsih government appears to be resigned to greater birder formalities for it has recently announced £50 million funding for new customs intermediaries and completed a consultation on a new border strategy for 2025.  Clearly, anybody hoping to do substantial business with EU countries after that date (particularly financial and professional services providers) should have started planning for those realities.

Probably by the end of this month and certainly by the end of October, we should know whether there will be a new partnership agreement.  Neither side sounds particularly hopeful.  How much difference any such agreement will make is debatable.  Anyone wishing to discuss this article or anything mentioned or referred to it it should call me on +44 (0)20 7474 5252 or send me a message through my contact form.