Brexit Briefing May 2021

Lord Frost

Author HM Government Licence OGL 3.0 Source Wikimedia

 

Jane Lambert

Save for differences over the Northern Ireland Protocol May has been a quiet month for exchanges between the British government and the European Commission. Businesses in the UK appear to be coming to terms with the consequences of third-country status.  The UK has appeared n its own right at the World Trade Organization and the Department for International Trade has announced details of the proposed trade agreement with Australia which has caused some consternation with British farmers,

At their meeting in Brussels on 16 April 2021,  European Commission Vice-President Maroš Šefčovič and Lord Frost, Minister of State at the Cabinet Office agreed to further engagement with business groups, civil society and other stakeholders in Northern Ireland, In accordance with that agreement, he met business and community representatives on a joint 2-day visit to the province with the Northern Irish Secretary.  He talked to representatives of the aerospace, manufacturing, food and drink, retail, and life sciences industries about the challenges those industries were facing.

Lord Frost released the following statement in relation to his visit:

"It’s clear from my visit that the Protocol is presenting significant challenges for many in Northern Ireland. Businesses have gone to extraordinary efforts to make the current requirements work, but it is hard to see that the way the Protocol is currently operating can be sustainable for long.

We’re committed to working through the issues with the EU urgently and in good faith. I hope they will take a common sense, risk-based approach that enables us to agree a pragmatic way forward that substantially eases the burdens on Northern Ireland.

Solutions must be found rapidly in order to protect the Belfast (Good Friday) Agreement in all its dimensions and to minimise disruption to the everyday lives of people in Northern Ireland - as the Protocol itself requires. As the Prime Minister has made clear, we will continue to consider all our options in meeting our overriding responsibility for sustaining the peace and prosperity of everyone in Northern Ireland."

A development that I forgot to mention in my last Brexit Briefing is that the Trade Bill is now law.  The new Trade Act 2021 consists of 19 sections divided into 5 Parts with 6 Schedules.  It provides machinery for the implementation of trade agreements and establishes a Trade Remedies Authority and a Trade and Agriculture Commission,   I will discuss this statute in a separate article in due course.

The UK's Permanent Representative to the WTO, Simon Manley, addressed the WTO Heads of Delegation for the first time during the Trade Negotiations Committee on 4 May 2021.  He has also delivered policy statements on TRIPS, COVID19 vaccines and other matters.   For the moment, HM Government is not inclined to follow the lead of the USA in responding to calls for a patent waiver in respect of COVID vaccines and treatments (see my article The Patent Waiver Debate 8 May 2021 NIPC Law).

Accession negotiations with the CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) have now been approved by the existing member states (see UK welcomes CPTPP nations’ invitation to begin accession 2 June 2021 DIT News Story).  One of the members of that partnership with which the Department has conducted advanced negotiations for a bilateral trade agreement is Australia. Among the proposals for that agreement is that Australian farm exports should enjoy tariff-free access to the British market after a period of adjustment.   This has precipitated calls from the National Farmers Union to stand up for farmers in Australia and NZ deals (see NFU joins calls for government to stand up for farmers in Australia and NZ deals 19 May 2021 NFU website).

Anyone wishing to discuss this article or any of the topics mentioned in it may call me on 020 7404 5252 during office hours or send me a message through my contact form at other times.

No Deal Preparations on Each Side of the Channel

Jane Lambert

Yesterday I was snowed under with a blizzard of emails from our own government setting out its preparations for "no deal".  Though they arrived the day after the cabinet had announced an intensification of preparations for a departure without a withdrawal agreement it was obvious that they had been planned if not written a good deal earlier.

Although I ploughed through all those emails I selected three that are likely to be of interest to my readers:

• Producing food products protected by a ‘geographical indication’ if there’s no Brexit deal;
• Existing free trade agreements if there’s no Brexit deal; and 
• Trade remedies if there's no Brexit deal.

The first of those emails updates guidance which was first published on 24 Sept 2018 which I mentioned in Geographical Indications over Brexit 6 Oct 2918 NIPC Branding.  The email gives more details of the new British scheme for protecting geographical indications which will be published shortly including the new logo and the protection that UK producers can expect in the remaining states and EU producers in the UK after 29 March 2019.  I shall offer seminars on the new British system at our chambers in London and Birmingham during the New Year,

The second states that HM government will try to negotiate bilateral agreements with third countries that replicate those countries' arrangements with the EU as soon as possible after Brexit.  Until these are agreed the United Kingdom will rely on "most favoured nation" terms.

Finally, a new quango is to be set up by the name of the Trade Remedies Authority which will investigate complaints of dumping and unfair practices. The guidance does not say what will be done if the quango finds an unfair trading practice but Annex 2 to the WTO Agreement provides for consultations. references to dispute settlement panels and corrective measures.

I also received a succinct Communication from the Commission to the European institutions preparing for the withdrawal of the UK from the EU on 30 March 2019 and implementing the Commission’s Contingency Action Plan.  The Communication discusses the Action Plan and sets out the following principles for contingency measures:

• "Contingency measures should not replicate the benefits of membership of the Union, nor the terms of any transition period, as provided for in the draft Withdrawal Agreement; 
• They should be temporary in nature. For the measures adopted today, the Commission has, where relevant, proposed time limitations which are a function of the specific situation in the sector concerned;
• They should be adopted unilaterally by the European Union in pursuit of its interests and should be revocable at any time; 
• They should respect the division of competencies provided for by the Treaties; 
• National contingency measures should be compatible with EU law; 
• They should not remedy delays that could have been avoided by preparedness measures and timely action by the relevant stakeholders."

The Communications addresses citizens; rights, financial services, air traffic, road haulage, customs and climate change policy.

Anyone wishing to discuss this article or Brexit generally should call me on 020 7404 5252 or send me a message through my contact page. 

Brexit Briefing - October 2017

Author Furfur
Licence: Creative Commons Attribution-Share Alike 4.0 International

Jane Lambert

For much of the month, attention in Britain has shifted away from Brexit to domestic concerns for two reasons. First, a spate of complaints of serious misconduct by politicians on both the left and the right which resulted in the resignation of two senior ministers, the withdrawal of the whip from several more and a tragic suicide.  Secondly, a frosty but not quite frozen communiqué of the 27 remaining EU member states at their Council meeting on 20 Oct 2017 which offered the hope of negotiations on the UK's future relationship with the EU (see the Conclusions 20 Oct 2017). Thought has at last been given to the nature of that future relationship.

On the 9 Nov 2017 Charles Grant, Director of the Centre for European Reform. published his predictions on how Brexit will unfold in The Guardian (see Charles Grant How Brexit will unfold – Britain will get a deal, but it’ll come at a price The Guardian 9 Nov 2017).  In his view, there will be:
1. A deal on citizens' rights, Ireland and the divorce settlement in December 2017;

2. A hard border between the Republic of Ireland and Northern Ireland;

3. A transitional arrangement on the EU’s terms;

4. No agreement on the future relationship between the EU and the UK before the UK leaves the EU;

5. No detailed proposals from the UK on a future economic partnership;

6. No bespoke agreement for the UK;

7. Some access to the single market in some sectors;

8. No undercutting by the UK of EU regulatory standards;

9. No preferential access to the EU's financial markets for the British financial services industries; and

10. Some kind of free trade agreement between the EU and UK.

That is probably the best that can be expected from the negotiations. There are many who fear that no deal will be reached at all.  The Confederation of German Industry, the German equivalent of the CBI, has warned its members who trade with or invest in Britain to prepare for a very hard Brexit indeed (see German Industry Federation advises its Members to prepare for a Hard Brexit 5 Oct 2017). As the UK will cease to be represented by the EU in international trade negotiations, the British and EU  representatives to the World Trade Organization have indicated to the other contracting parties how they will collaborate (see UK's Future Relationship with the World Trade Organization 16 Oct 2017).

It is said that progress in the negotiations has stalled over money and that may well be the case in the short term. In the long term, however, it is likely to be the absence of a means of holding the UK to account if it refuses to acknowledge the jurisdiction of the Court of Justice of the European Union. The Institute of Government considered a number of alternatives in Some Proposals for Dispute Resolution from the Institute for Government 8 Oct 2017 none of which is entirely satisfactory. As the issue has arisen first in the protection of citizens' rights, it is worth looking at HMG's Technical Note: Citizens; Rights - Administrative Procedures in the UK. I would not be attracted by those proposals if I were a negotiator for the EU 27. I think it is overly optimistic to expect a deal by December, but we shall see.

In the meantime, if you want to discuss this article or Brexit in general, call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

UK's Future Relationship with the World Trade Organization

Author E Murray
Copyright ILO Historical Photo/Archives
Creative Commons Attribution-Share Alike 3.0 unported
Source Wikipedia

Jane Lambert

The UK was one of the founder members of the World Trade Organization ("WTO") but its rights under the WTO Agreement and annexes are exercised, and its obligations are undertaken, on its behalf by the European Union. When the UK leaves the EU it must exercise its rights and discharge its responsibilities on its own account. Naturally, that will have repercussions for all the other member states of the WTO. By a joint letter dated 11 Oct 2017 to the Permanent Representatives to the WTO, Julian Braithwaite, UK Permanent Representative to the International Organizations in Geneva, and Marc Vanheukelen, EU Permanent Representative to the WTO, have set out their intentions with regard to the implications of the UK withdrawal from the EU within the WTO.

The letter states that the UK intends to replicate as far as possible its obligations under the current commitments of the EU. The EU and UK will follow a cooperative and transparent approach regarding any necessary adjustment in the WTO arising from the UK withdrawal from the EU and they will strive to minimize disruption to trade. Both the UK and EU UK intends to replicate as far as possible its obligations under the current commitments of the EU. The EU and the UK will follow a cooperative and transparent approach regarding any necessary adjustment in the WTO arising from the UK withdrawal from the EU.

Initially, the UK will continue the same policies as those of the EU with regard to market access, agricultural support, government procurement and trade and development.  It will continue to engage with the EU "in a spirit of cooperation, inclusiveness and openness on these matters over the course of the coming weeks and months."

This is an important document because the WTO Agreement and its annexes may be the only international agreement binding the UK to our neighbours when the EU treaties cease to apply to us in March 2019 pursuant to art 50 (3) of the Treaty of European Union. Interestingly, I found it not on the website of the Department for Exiting the EU, nor on any other British government website but on that of the Commission's task force on art 50.

Should anyone wish to discuss this letter or Brexit generally, call me on 020 7404 5252 during office hours or send me a message through my contact form.