Brexit Briefing - September 2017

Helen Tse and Jane Lambert

Jane Lambert

Since my last Brexit Briefing, there has been a fourth round of negotiations on the terms of the UK's withdrawal from the EU, Mrs May made a speech at the church of Santa Maria Novella in Florence that has been generally warmly received, the British government and the Commission's art 50 task force published position papers on data protection and intellectual property and Helen Tse's book Doing Business After Brexit was launched in Manchester.

The Brexit Negotiations

Despite Mrs May's concessions in Florence. there is still a gap between the two sides which may prove to be unbridgeable.  It was summed up today by Michel Barnier in his speech to the European Parliament:

"We understand and share the worry of the 4.5 million British and European citizens who want to continue living and working like they did before Brexit.
This worry, which you refer to in your resolution, has been worsened by certain discriminatory measures taken by the British authorities. We are worried about this.
To effectively guarantee these rights, we need:

1. The withdrawal agreement to have direct effect to allow British authorities and judges to rely directly on the withdrawal agreement. Without direct effect, these rights could be changed over time
2. A coherent interpretation of the agreement on both sides of the Chanel, which only the European Court of Justice can assure."

Mrs. May went some way to allaying those fears by offering to incorporate the terms of any withdrawal agreement that guarantees the rights of the citizens of the remaining member states into English and Welsh, Scottish and Northern  Irish law, but, as I said in Has Mrs May done enough to break the Logjam? 24 Sept 2017, "it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time." In Fourth Round of Brexit Talks: Still a Logjam 29 Sep 2017 I suggested a possible solution in the form of a constitutional convention but for countries used written constitutions that is unlikely to be enough.  I fear that the reluctance of our government to accept the interpretation of any withdrawal agreement by the Court of Justice will be the deal breaker.

Data Protection 

In its position paper on  data protection, the Commission's art 50 task force warned 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." That would be disastrous for a country with a services based economy.  As I said in Another Data Protection Act! "You're joking! Not another one!" - A Short History of Data Protection Legislation in the UK 23 Sept 2017 NIPC Law, we enacted data protection legislation because other countries passed laws that restricted the flow of personal data to us To enable the United Kingdom to safeguard personal data after the General Data Protection Regulation ceases to apply to us, the Government has introduced a new Data Protection Bill into the House of Lords (see Introduction to the Data Protection Bill 16 Oct 2017 NIPC Data Protection).

Intellectual Property

The Commission's position paper on intellectual property rights including geographical indications has been generally welcomed as far as it goes.  However, it is silent on the unitary patent which Tony Rollins regards as assent to the British position that the Unified Patent Court Agreement is an international agreement extraneous to the Treaties (see Commission Position Paper on Intellectual Property Rights including Geographical Indications 7 Sept 2017). I wish I could agree with him but I don't think I can for the reasons set out in my postscript. Fourteen countries including France have ratified the UPC Agreement which means that it could come into effect upon  British and German ratification. Unfortunately, German ratification has been delayed by mysterious proceedings in the German constitutional court. The following announcement appears on the UPC's website:

"A case is currently pending in the German Federal Constitutional Court (FCC) concerning the law passed by the German Parliament on the implementation of the Agreement on the Unified Patent Court (UPCA). This will cause delay to the German ratification of the UPCA and the Protocol on Provisional Application."

There is no indication as to how long those proceedings will last.

Asia

In response to a tweet by Lord Digby Jones that the 21st Century belongs to Asia, not the EU, I looked at Chin, India and Russia which are the three largest countries in that continent and found that they are coming together in the Shanghai Cooperation Organization, BRICS and the One Belt One Road project just as we are drawing away from our neighbours (see The Shanghai Cooperation Organization 9 Sep 2017). Our IP attaché to Beijing, Tom Duke, was in the UK last month and I had the honour of chairing his talks in Barnsley and Leeds.  His visit culminated in a symposium at the IPO's London office hosted by the IPO and SIPO entitled "Future Proofing the IP System" (see UK-China IP symposium highlights importance of innovation 22 Sep 2017 .Gov.UK website).

Book Launch

Finally, Helen Tse's book, Doing Business After Brexit, to which I have contributed the chapter on IP and data protection, was launched at a meeting of the Manchester SME Club at Deloitte's Manchester office on 20 Sept 2017. I reported it in Doing Business After Brexit  24 Sep 2017 in IP North West. The photograph of us both that appears at the top of the page was taken at that event.

Further Information

Should anyone wish to discuss this article or Brexit further, call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Has Mrs May done enough to break the Logjam?

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Jane Lambert

The Rt Hon Theresa May MP and Monsieur Michel Barnier visited Italy last week.  Both made speeches.  Monsieur Barnier delivered his to the Foreign and European Affairs Committees of the Italian Parliament in Rome on 21 Sept 2017 (see Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament 21 Sept 2017). Mrs May delivered hers the next day at the church of Santa Maria Novella (see PM's Florence speech: a new era of cooperation and partnership between the UK and the EU 22 Sept 2017).

Mrs May went to Florence with the object of persuading Monsieur Barnier or perhaps those instructing him that the parties had made sufficient progress on the negotiation of a withdrawal agreement to discuss the terms of a new relationship between the European Union and the United Kingdon after the 29 May 2019 or any transitional period that may follow our departure.  Has she done enough to achieve that objective?

If the differences between  Her Majesty's Government and those of the remaining member states were really about money as is so often said by politicians and the press in this country, then I would say that she probably had.  She said in terms:

"I do not want our partners to fear that they will need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. The UK will honour commitments we have made during the period of our membership."

But, as I said in  Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 I don't think money is the real problem.

The stumbling block is the constitutional principle that no Parliament may bind its successor.  Whatever Mrs May agrees to in a treaty, whatever treaty commitments she enshrines in statute, a future administration, whether of the right or of the left, could repeal it and the courts of England and Wales, Scotland and Northern Ireland would have no option but to give effect to the statute.

That's not possible right now because Union law prevails over national law. If Parliament passed an Act that was repugnant to EU law our courts would simply disregard it.  After Brexit, British nationals in the remaining states will still have the guarantee of EU law if a remaining state were to enact legislation that is repugnant to the withdrawal agreement but EU nationals living here would not because the EU treaties will have ceased to apply here by reason of art 50 (3).

That is why Monsieur Barnier said in Rome:

"On citizens' rights, our priority in this negotiation:
The issue of guaranteeing the rights of EU citizens in the United Kingdom has not been solved.
It is absolutely necessary that all these citizens, hundreds of thousands of whom are Italian citizens living and working in the United Kingdom, can continue to live as they did before, with the same rights and safeguards.
This is a human and social question, which the European Parliament and its president, Antonio Tajani, are vigilantly watching, and rightly so.
Citizens should be able to enforce their rights directly from the withdrawal agreement. This would prevent any possible dilution of these rights, if the rules implementing them in the UK were to change.
In the same way, we want these rights to be valid in national courts and that national courts have the possibility – or even the obligation – to refer questions related to the interpretation of rights deriving from European law to the Court of Justice of the European Union. The Court of Justice would remain the ultimate guarantor of the agreement.
This is for a simple reason: rights need to be effectively guaranteed.
Our citizens have real concerns today – which we share – when the Home Office sends deportation letters or appears to defy High Court orders, as we read in the press.
Our position on this point has been clear since the beginning. We want to provide the strongest safeguards for the rights of citizens on both sides of the Channel. We are waiting for the United Kingdom to express the same wish."

So what did Mrs May offer in response? Well, there was some movement.  The Prime Minister acknowledged the need for guarantees and made the following concession:

"We have also made significant progress on how we look after European nationals living in the UK and British nationals living in the 27 Member States of the EU.
I know this whole process has been a cause of great worry and anxiety for them and their loved ones.
But I want to repeat to the 600,000 Italians in the UK – and indeed to all EU citizens who have made their lives in our country – that we want you to stay; we value you; and we thank you for your contribution to our national life – and it has been, and remains, one of my first goals in this negotiation to ensure that you can carry on living your lives as before.
I am clear that the guarantee I am giving on your rights is real. And I doubt anyone with real experience of the UK would doubt the independence of our courts or of the rigour with which they will uphold people’s legal rights.
But I know there are concerns that over time the rights of EU citizens in the UK and UK citizens overseas will diverge. I want to incorporate our agreement fully into UK law and make sure the UK courts can refer directly to it.
Where there is uncertainty around underlying EU law, I want the UK courts to be able to take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation. On this basis, I hope our teams can reach firm agreement quickly."

The offer to incorporate a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction - especially if our courts can take account of judgments of the Court of Justice of the European Union. But it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.  If I were advising Monsieur Barnier and his team (which, thankfully, I am not) I would have to tell them that Mrs May's concession is just not good enough.

Should anyone wish to discuss this article, he or she can call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.