The Alleged Benefits of Brexit

Author Les Chatfield Licence CC BY-SA 2.0 Source Wikimedia Commons

 

Jane Lambert

On 31 Jan 2022, the Cabinet Office published a document entitled  The Benefits of Brexit: How the UK is taking advantage of leaving the EU.   It consists of 105 pages including the front cover and back page.  There is a "Foreword by the Prime Minister", an "Introduction", sections headed "Our Achievements so far", "The Best Regulated Economy in the World" and "A World of Future Opportunities", and a "Conclusion."

When governments enter a treaty each of them accepts restrictions. When the treaty comes to an end so do the restrictions.  Whether or not a release from restrictions confers a benefit will depend on how it is to be used.  Even if it does confer a benefit it will come at a cost because the benefits that had been conferred by the treaty will also be lost.  The ending of the treaty will be a net benefit only if the benefits resulting from the release outweighs those costs.

Anyone expecting the above document to quantify the benefits of leaving the EU and weighing them against the costs will be disappointed because it is a polemic and not an analysis.  Its authors are not identified but the "Introduction" states that "many of the benefits" and future work set out in that document build on the work and ideas of Sir Iain Duncan Smith MP, Theresa Villiers MP and George Freeman MP and their Taskforce on Innovation, Growth and Regulatory Reform.  It adds that there have been contributions from numerous business groups and representative organisations who have met the Prime Minister and other Ministers.  

This section headed "Our Achievements So Far" consists of 14 pages divided into the following subsections:

• Taking Back Control (page 5 to 7);
• Our Money and Levelling Up (pages 8 and 9);
• Backing our Business (page 10 to 12);
• Support for People and Families (pages 13 and 14);
• Protecting our Environment (page 15);
• Enhancing Animal Welfare Standards (page 16);  and
• Global Britain (page 17 to 19).

The alleged achievements of "Taking Back Control" include "ending free movement", "making it tougher for EU criminals to enter the UK", reintroducing blue passports and "reviewing the EU ban on imperial markings and sales".  The authors explain that that is because "imperial units like pounds and ounces are widely valued in the UK and are a core part of many people’s British identity." "Our Money and Levelling Up" includes stopping contributions to the EU, spending more money on the NHS, subsidizing British businesses, changing the rules on public procurement to make it easier for British businesses to win public sector contracts and setting up free ports.   "Support for People and Families" includes raising the limit for contactless payments to £100, removing the requirement for vehicle owners to insure against accidents on private land, replacing the Erasmus scheme with the Turing scheme and relaxing the rules on cannabis for medical use.   The rest of the section is in a similar vein. 

"The Best Regulated Economy in the World" section is 13 pages long divided as follows:

• "Our regulatory system is recognised globally. We want to raise the bar even higher as we embrace our new found freedoms outside of the EU and position ourselves as a global hub for innovation and a science and technology superpower" (page 20);
• Making the most of our regulatory freedoms (page 21);
• Our principles for regulation (pages 22 and 23);
• A sovereign approach (pages 24 and 25); 
• Leading from the front (page 26);
• Proportionality (page 27);
• Recognizing what works (page 28);
• Setting high standards at home and globally (page 29);
• Retained EU law (page 30);
• Accelerating and prioritizing refim (page 31); and 
• Amending retained EU law (pages 32 and 33),

Except for the passages on repealing or amending retained EU law for which it appears that primary legislation will be required there is very little detail on how UK regulation will improve on or even diverge from the EU's.

The most sunstantial section is headed "A World of Opportunities".  That runs from page 34 to 100 and cosnsists of the following subsections:

• A world of opportunities (pages 34 and 35);
• Science Data & Technology (pages 36 and 37);
• Quantum Technologies (pages 38 and 39);
• Digital Economy (pages 40 and 41);
• Digital Technology in Trade (pages 42 and 43);
• Online Safety (page 44);
• Cyner Security & Product Safety (page 45);
• Life Sciences (pages 46 and 47);
• Business & Industry (pages 48 and 49);
• Professional Business Services (pages 50 and 51);
• Legal Services (pages 52 and 53);
• Automotive (pages 54 and 55);
• Aerospece (pages 56 and 57);
• Retail and Consumer Goods (pages 58 and 59);
• Hospitality (pages 60 and 61);
• Food & Drink (pages 62 and 63);
• Culture (page 64);
• Infrastructure & Levelling Up (pages 65 and 66);
• Aviation (pages 67 and 68);
• Space (pages 60 and 70);
• Rail (pages 71 and 72);
• Roads (pages 73 and 74);
• Maritime (page 75);
• Nuclear (pages 76 and 77);
• Housing & Construction (page 78);
• Local Government (page 79);
• Education (pages 80 and 81);
• Health (pages 82 and 83);
• Climate, the Environment & Agriculture (pages 84 and 85);
• The Environment (pages 86 and 87);
• Farming (pages 88 and 89);
• Fisheries & Marine Management (pages 90 and 91);
• Animal Welfare (pages 92 and 93);
• Glonal Britain (pages 94 and 95);
• Migration (pages 96 and 97);
• International Trade (page 98); and
• International Relations and Diplomacy (pages 99 and 100). 

Part of this programme would not have been possible without brexit. Changes to data protection law that may not be compatible with the General Data Protection Regulation. Subsidies and investments in various sectors of the economy might have been prohibited as state aid. Member states would not have been able to negotiate free trade agreements with third countries. There is not much else that would have been incompatible with EU membership.  Where there are changes such as the exclusion of English and Welsh lawyers from the Court of Justice, General Court and the Unified Patent Courts and the withdrawal of the UK from the Brussels and Lugano Conventions are hard to spin as benefits. Possible accession to the Singapore Convention on Mediation and the recognition of English legal qualifications in Australia and New Zealand will not begin to make up for the loss of the right to practise in the EU.

The "Conclusion" is made up exclusively of platitudes.   Anyone wishing to discuss this article or the issues arising in it may call me on 020 7404 5252 during office hours or send me a message through my contact form. 

Brexit Briefing - August 2021

British forces on their way to Kabul to assist with the evacuation

Author Ministry of Defence Licence OGL v 3  Source Wikimedia Commons

 

Jane Lambert

August was the month the government might have expected some positives from brexit.  An aircraft carrier strike group steamed through the South China Sea for the first time since 1968 when Denis Healey withdrew British forces from their bases east of Suez.  Business Secretary Kwasi Kwarteng published plans for the UK to become a science and technology superpower in 9 years time (see UK Innovation Strategy 12 Aug 2021 NIPC Inventors Club). Culture Secretary Oliver Dowden promised "a world-leading data regime" by "forging new global partnerships and designing our own common sense data laws" (see Dowden's Data Protection Plans 27 Aug 2021 NIPC Data Protection).

None of those announcements was noticed because attention has focused on the rapid collapse of a régime in defence of which 454 British service personnel lost their lives.  What will be remembered long after the fleet has returned to its base will be the emergency parliamentary debate on Afghanistan and, in particular, the words of the former Prime Minister:  "Where is global Britain on the streets of Kabul?" MPs and peers had harsh words for the United States and its government in that debate.  The US government gave as good as it got by inferring that the UK authorities were partly to blame for the casualties of the terrorist attack by insisting on keeping the Abbey Gate open.

There have been tensions and spats between the US and UK in the past as Philip Stephens noted in his article, Kabul retreat leaves the UK on a bridge to nowhere (26 Aug 2021 Financial Times).  These have been forgotten and forgiven as the UK stayed close to the only giant in Liliput.  But the decision of the last two presidents to withdraw from Afghanistan come what may has made that giant appear old and feeble, especially in contrast to the vigorous, youthful giant that is emerging in Asia.  The Chinese government's newspaper, Global Times, was not slow to question the strength of the US  commitment to Taiwan in the light of the evacuation from Kabul.  Aspiring to be Greece to America's Rome may have made sense during the pax Americana.   With the legions in retreat, it is much less easy to justify.

Although there are no immediate signs of it happening, August may be the month in which the British public begins to rediscover the advantages of collaborating with its neighbours.  When the Prime Minister argued in Parliament that the UK had no choice but to accept the American withdrawal, at least one MP asked why the government did not explore the possibility of working with other NATO allies to ensure an orderly withdrawal of nationals if not the continuation of the mission.  It is already clear that several of the UK's neighbours have overtaken the UK and other English speaking countries in vaccinating their citizens,  Also, none of them is suffering the distribution difficulties caused by the shortage of  HGV drivers with the ending of free movement of labour.   No amount of free trade agreements with countries on the other side of the world will solve those problems but closer cooperation with the EU might.

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

Brexit Briefing - June 2021

White Cliffs of Dover

Photochrom Film Collection  Copyright expired

 

Jane Lambert

The transition or implementation period provided by art 126 of the agreement by which the UK left the EU expired on 31 Dec 2020 and commentators have been taking stock.   The British economy has not collapsed though some industries have reported difficulty,  On the other hand, the economy has not shown any signs of outperforming the economies of its continental neighbours.

Cabinet Office Policy Paper

The Cabinet Office has just updated a policy paper entitled Summary: The UK’s new relationship with the EU which it first published on 8 June 2021.  The policy paper purports to give an overview of what has changed, and what remains the same and refers to a special site at https://www.gov.uk/brexit for the detail.

Influence of EU Law

The first paragraph of that policy paper states that the UK has now left the EU Single Market and Customs Union which is entirely correct. It also claims that EU law no longer applies in the UK.  That is correct only in the sense that the British government no longer participates in EU legislation, courts in this country are not bound by decisions of the Court of Justice of the European Union and judges can no longer refer cases to the court under art 267 of the Treaty on the Functioning of the European Union. However, it ignores the incorporation of EU legislation and case law into the domestic laws of England, Wales, Scotland and Northern Ireland by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and the continuing right of courts in this country to have regard to judgments of the Court of Justice that have been or may be delivered since the end of the transition period.  Moreover, anyone in the UK who wishes to invest in, trade with or even visit the EU must continue to comply with EU law. 

Travelling to the EU

The right of free movement which was ensured by art 3 (2) of the Treaty of European Union no longer applies to British nationals.  There are now new rules for visiting the EU which are set out in the Passports, Travel and Living Abroad pages of the government website. Travellers are advised to take out comprehensive travel insurance, check that their passports meet new validity rules, and get any documents they may need to take their vehicles with them.  

Existing European Health Insurance Cards ("EHIC") will continue to be recognized until they expire and similar benefits are promised under the Global Health Insurance Card ("GHIC").   Applications for new GHICs or replacements for the EHIC are directed to www.nhs.uk/GHIC but that link is broken.  The correct site is headed Applying for healthcare cover abroad (GHIC and EHIC).   As my EHIC expired on 21 June 2021 I applied for a GHIC through that website while carrying out research for this article.  I received confirmation that my application had been successful almost immediately.

Visitors from the UK are not allowed to bring a ham or cheese sandwich or indeed any other meat or dairy products with them when crossing the channel.  Almost all plants and plant products, including fruits, vegetables, flowers and seeds, require a phytosanitary certificate.  Pet passports can no longer be relied upon.  Although it is not mentioned in the policy paper, roaming charges are to be reintroduced from January 2022 (see Anthony Reuben EE to reintroduce Europe roaming charges in January 24 June 2021 BBC).  Regulation (EU) 2017/1128 on cross-border portability of online content no longer applies to the UK which means that British travellers can no longer access online content in the EU (see IPO Guidance Protecting Copyright in the UK and EU 30 Jan 2020).

Trade in Goods

Businesses now need to comply with new customs procedures, including UK export declarations and import requirements on entry to the EU.   Some industries have found it harder to adapt than others.   The Food and Drink Federation reported a 47% drop in exports in the first quarter of 2021 compared to the same quarter of 2020 (see Exports snapshot: Q1 2021).   On the other hand, sales to Australia, China, Hong Kong, Japan and Saudi Arabia actually increased slightly in that period.  

Difficulties had arisen in sales of certain foodstuffs to Northern Ireland which is now treated as part of the EU for some purposes but the Commission has agreed to extend a grace period for the export of chilled meats for the time being.  Lord Frost, who was one of the UK government's principal negotiators has admitted that he did not anticipate the difficulties that have arisen over Northern Ireland (see Government Didn't Expect Brexit To Be So Disruptive For Northern Ireland, David Frost Admits  Adam Payne 17 May 2021).  If that is really the case it is extraordinary because I warned of them in this blog as did many others in other publications (see Brexit Briefing March 2020 4 April 2020).  

One bit of good news in manufacturing was Nissan's announcement of a substantial investment in battery production in this country (see Nissan to create thousands of UK jobs in battery investment 29 June 2021 BBC website).  It is thought that the British government has invested or promised to invest a substantial sum in the project.  Even with this investment, battery production in the UK will be a fraction of that of Germany.

Trade in Services

The Trade and Cooperation Agreement did not make extensive provision for trade in services.   Talks did take place between Her Majesty's Government and the Commission on recognizing each other's standards as equivalent but these have ended without agreement (see Sunak: Financial services equivalence deal with EU 'has not happened 2 July 2021 The Guardian).   Happily, the Commission has recognized the UK's data protection legislation as broadly equivalent to its own which should ensure that the mutual exchange of personal data shall continue for the time being (see Jane Lambert Commission Adequacy Decisions 29 June 2021 NIPC Data Protection).

.   
There had been consternation earlier this year when Amsterdam appeared to overtake London in the trading of equities (see Philip Stafford Amsterdam ousts London as Europe’s top share trading hub 10 Feb 2021 FT).  London has recently recovered its position as the leading equity market (see Philip Stafford London reclaims top trading status from Amsterdam 2 July 29021 FT).  According to Stafford, London regained its lead through trading in Swiss stocks.

Free Trade Agreements

The rationale for Brexit is that the world's fastest-growing markets lie outside the EU and that any loss of trade with mainland Europe can be more than offset by increasing trade elsewhere. It is argued that commodity prices are lower ln world markets than in the EU because there are no external tariffs and that British negotiators can obtain more favourable trade deals for the British economy than EU negotiators because British interests no longer have to be weighed against those of other EU member states. So far, most of the agreements that the British government has concluded with countries outside the EU have been based on agreements between those countries and the EU. The agreement with Japan was slightly different (see Jane Lambert Agreement in Principle on a Comprehensive Economic Partnership with Japan of 12 Sept 2020 and An Introduction to and Overview of the Comprehensive Economic Partnership Agreement with Japan of 28 Oct 2020), The prospective agreement with Australia is the first bilateral trade agreement to be negotiated from scratch (see Jane Lambert The Proposed Australia-UK Free Trade Agreement of 17 June 2021).  HM Government also opened negotiations for British accession to The Comprehensive and Progressive Agreement for Trans-Pacific Partnership on 22 June 2021 (see the Department for International Trade's press release Britain launches negotiations with £9 trillion Pacific free trade area 21 June 2021 DfIT website).

Further Information

I shall be monitoring and reporting on those developments over the next few months.   Anyone wishing to discuss this article or the Brexit experiment generally may contact me on +44 (0)20 7404 5252 during normal business hours or by sending me a message through my contact form at all other times. 

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.  

European Commission - "Getting Ready for Changes"

By Rolf Süssbrich - Own work, CC BY-SA 3.0, 

https://commons.wikimedia.org/w/index.php?curid=863700

Jane Lambert

On 9 July 2020, the Commission published a communication entitled Getting ready for changes Communication on readiness at the end of the transition period between the European Union and the United Kingdom to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (COM(2020) 324 final).  While negotiations for a new relationship between the UK and the EU are intensifying the communication nites that even if the parties were to conclude an ambitious partnership covering all areas agreed in the Political Declaration such an agreement would create a relationship which will be very different from the United Kingdom’s participation in the EU Single Market and Customs Union, and in the VAT and excise duty area.  It will inevitably create barristers to trade in goods and services and cross-border mobility and exchanges that do not exist today.

The communication considers the changes that will be required in the following sectors:

• Trade in goods
• Trade in services
• Energy
• Travel and tourism
• Mobility and social security coordination
• Company law and civil law
• Intellectual property
• Data protection
• International agreements.

For each of those topics, there is a statement of principle followed by "Advice to Businesses and Member State Administrations".   For "Intellectual Property", for instance, there is a statement that the exhaustion of rights principle will continue until 31 Dec 2020.  That is followed by the warning:

"As of 1 January 2021, traders in the European Union can no longer invoke exhaustion vis-àvis right-holders when sourcing products from the United Kingdom."

The advice to Businesses and Member State Administrations is:

"Businesses engaged in parallel trade from the United Kingdom should re-visit their business arrangements."

The communication also notes that while existing EU unitary intellectual property rights (EU trade marks, Community designs, Community plant variety rights and geographical indications) remain protected under the Withdrawal Agreement, any new EU unitary rights will have a reduced territorial scope as they will no longer have effect in the UK.

The British government has also started a publicity campaign to prepare the public for these changes.  Yesterday it distributed by email to my and other subscribers an op-ed that the Rt Hon Michael Gove MP had published in The Daily Telegraph entitled "Outside the EU, a bright future awaits Britain."

Anyone wishing to discuss this article or the legal consequences of the end of the transition period should call my clerk, Stephen, on 07986 948267 or send me a message through my contact page.

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

• transport,  
• energy 
• level playing field and sustainability 
• fisheries 
• a free trade agreement, and
• data protection.

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.

Future Relationship Agreements with the EFTA States

Jane Lambert

On 20 Dec 2018, the Department for Exiting the European Union announced that the government had reached agreement with the governments of the EFTA member states on the UK's relationship with those states after 29 March 2019.  As Switzerland is a full member of EFTA but not of the European Economic Area (EEA") separate agreements have been made with the EFTA states that are party to the  EEA Agreement - namely Iceland, Liechtenstein and Norway - and also with Switzerland.

EFTA
The European Free Trade Association was established on 3 May 1960 by countries that were unable or unwilling to join the European Economic Community ("EEC"). Its founding members were Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdon. Iceland joined them in 1970. Denmark and the United Kingdom left EFTA to join the EEC in 1973. They were followed by Portugal in 1986 and Austria, and Sweden in 1995. Iceland and Liechtenstein joined EFTA after the UK left. The current members are Iceland, Liechtenstein, Norway and Switzerland. They have a combined land area of 204,500 square miles which is slightly smaller than France and a population of just over 14 million which is about the same as the Istanbul metropolitan area.

The EEA
The EEA consists of the states that are party to the Agreement on the European Economic Area. They include all the states of the European Union plus Iceland, Liechtenstein and Norway.  It enables the contracting states to participate in the EU's single market and in some but no all other programs. Switzerland has not yet ratified that Agreement but it has a number of bilateral agreements with the EU that enable it to participate in the single market.

The Brexit Referendum
The EEA Agreement guaranteed free movement of people with the result that there are many British citizens in each of the EFTA states and citizens from each and every one of the EFTA states in the UK. The current British government interprets the results of the Brtish referendum on membership of the EU as a rejection of the right of free movement. It believes that the UK must leave the EEA as well as the EU. Agreement is therefore required as to what should happen to all those expatriates as well as rights that have been acquired under the EU legislation that extends to the EGTA member states after 29 March 2919.

The Agreement with Iceland, Liechtenstein and Norway
Those matters are addressed in the Agreement on arrangements between Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland following the withdrawal of the United Kingdom from the European Union, the EEA agreement and other agreements applicable between the UnitedKingdom and the EEA EFTA States by virtue of the UnitedKingdom’s membership of the European Union. The agreement is very much shorter than the draft withdrawal agreement from the EU. It is 69 pages long in contrast to the 585 of the withdrawal agreement and consists of 71 articles divided into 4 parts with 2 annexes.

Part 1 (arts 1 to 7) contains the objective of the agreement, definitions and similar provisions. Part 2 (arts 8 to 37) deals with citizens' rights.  Part 3 (arts 38 to 63) covers the treatment of goods on the single market during the implementation period in the withdrawal agreement which runs between the 29 March 2019 and 31 Dec 2020. Also covered are intellectual property, judicial cooperation in criminal and civil matters, data protection and public [rocurement. The last part (arts 64 to 69) sets up a joint committee which will deal with the interpretation and implementation of the treaty and dispute resolution.  The Department for Exiting the EU has published an explainer for that agreement.

The Agreement with Switzerland
The agreement with Switzerland is even shorter and deals with citizens' rights. There is also an explainer to that agreement.

Further Information
Both agreements will have to be ratified by the national legislatures of the contracting parties.  The European Union (Withdrawal Agreement) Bill proposed in the white paper Legislating for the withdrawal Agreement between the United Kingdom and the European Union (Cm 9674) is intended to be the instrument that ratifies the agreement in the UK.

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

Brexit Briefing October 2018

Original uploader Jonto
Licence: Creative Commons Attribution-Share Alike 3.0 unported
Source Wikipedia 

Jane Lambert

The consequences for the United Kingdon of leaving the EU without a withdrawal agreement on 29 March 2019  anticipated by Her Majesty's government are set out in a series of guidance notes linked to How to prepare if the UK leaves the EU with no deal.  The first batch was published on 23 Aug 2018 and discussed in my article And if there is no deal .................. 24 Aug 2018. In many areas such as, for example, civil litigation which I covered in Trans-Border Litigation after Brexit there will be additional uncertainty, inconvenience and expense and even the possibility of injustice.

Ministers and negotiators on both sides have said that 95% of a draft withdrawal agreement has been agreed but the question of how to retain an open border between the Republic of Ireland and Northern Ireland remains unresolved.  The problem can best be understood in the Infographic on the EU's 'backstop' proposal which was published on 11 June 2018.  An open border is possible because of

• Common tariffs and rules of origin apply to non-EU goods 
• Common VAT and excise area 
• Common product safety and quality standards (e.g. food, chemicals and consumer goods), and a 
• Single epidemiological unit with common rules for animal health and welfare.

After the UK leaves the EU there will be divergence in all those areas necessitating checks and inspections of goods travelling across the border, These need not necessarily take place at the border crossing but they have to take place somewhere.  

The Commission's proposal is for Northern Ireland to remain aligned with the Irish Republic and for checks to take place at the British and Irish ports,  That is rejected by the British government and some Northern Irish politicians as tantamount to annexation of the province.  The counterproposal is a common rulebook for the EU and the whole of the UK.  The counterproposal is opposed by many in the UK and has been rejected in terms by the EU. There has not really been much movement on those issues since July and neither side seems to show any sign of blinking.

Over the last few weeks I have been writing about the consequences of Brexit on any basis for:

• patents
• geographical indications
• data protection
• EU trade marks and Community designs
• copyrights and related rights
• plant varieties, and
• civil litigation.

The government also updated its advice on IP in IP and Brexit; The Facts on 26 Oct 2018.

The measure of legal protection for brands, designs, technology and creativity is a factor to be taken into account by manufacturers and distributors when making investment and location decisions.  A picture is now beginning to emerge as to what that protection will be.  Most would regard a regime consisting entirely of national IP rights as inferior to the current mix of national and EU rights but some may regard it as enough.  Every business must make its own assessment.

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

The Draft Withdrawal Agreement: Getting Down to Business at Last

Jane Lambert

The draft withdrawal agreement that the European Commission published on 28 Feb 2018 has to be welcomed. As every lawyer (if not every business person) knows, there comes a time in every negotiation when the provisions that appear to have been agreed must be committed to writing. Then and only then can potential deal breaking issues be identified and perhaps addressed. The sooner that is done the greater the chance of a successful outcome.

The thing that struck me most about the draft agreement is its length: 168 articles plus protocols on Ireland and Cyprus each with its own annexes compressed into 118 pages. I am surprised by how much has been agreed or is capable of agreement. Obviously there are a few hot issues such as those in the Protocol on Ireland that could scupper everything but there is so much more that has been, or can easily be, agreed.

The main body of the draft is divided into the following Parts:

• Part 1 - Common Provisions
• Part 2 - Citizens' Rights
• Part 3 - Separation Provisions
• Part 4 - Transition
• Part 5 - Financial Provisions
• Part 8 - Institutional and Final Provisions.

Part 1 consists of 7 articles the most important of which is art 1:

"This Agreement sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and Northern Ireland ('United Kingdom') from the European Union ('Union') and from the European Atomic Energy Community ('Euratom')."

There follow definitions and interpretive provisions.

Arts 8 to 35 constitute Part 2 which are divided into 4 Titles. The first contains general provisions such as definitions and basic principles such as continuation of residence and non-discrimination. Title II divides into 3 chapters on rights related to residence, workers and the self-employed and recognition of professional qualifications respectively. Title III is on social security and Title IV contains final provisions.

The bulk of the draft treaty (arts 36 to 120) is in Part 3 which is also divided into Titles some of which are further subdivided into Chapters.  Title I is on goods placed on  the market. Title II on customs procedures, Title III on VAT and other duties, Title IV on intellectual property, Title V on police and judicial cooperation in criminal matters, Title VI on judicial cooperation in civil and commercial matters, Title VII on data protections, Title VIII on public procurement and similar issues, Title IX on Euratom and related issues, Title X on EU administrative and judicial procedures, Title XI on administrative cooperation, Title XII on privileges and  immunities and Title XIII on other issues relating to the EU. Interestingly, the provisions of Title IV on intellectual property are silent on the Unified Patent Court and unitary patent. They cover the conversion of EU trade marks, registered Community designs and Community plant varieties into the corresponding British rights and the adaptation of provisions on supplementary protection certificates and the exhaustion of rights.

Part 4 contains 5 articles (arts 121 - 126) on the transition period.

Part 5 (arts 127 to 150) is divided into 7 Chapters covering currency (Chapter 1), the UK's contribution to the budget up to 2020 (Chapter 2), the European Central Bank (Chapter 3), the European Investment Bank (Chapter 4), European Development Fund (Chapter 5), Refugees in Turkey (Chapter 6) and Common Defence and Security (Chapter 7).

Part 6 spells out the continued jurisdiction of the Court of Justice of the European Union in the implementation period and beyond and the establishment at art 157 (1) of a joint committee to supervise and implement the agreement and resolve disputes.

This instrument is, of course, only a draft and it is likely to be changed over time but it sets out the likely framework of the withdrawal agreement contemplated by art 50 (2) of the Treaty on European Union as well as the transition or implementation period between 29 March 2019 and 31 Dec 2020. Should anyone wish to discuss this draft, he or she should contact me during office hours on +44 (0)20 7404 5252 or send me a message through my contact form.

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.

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.

New Position Papers from DxEU

Jane Lambert

Mr David Davis and his civil servants have been busy. While everyone else in England and Wales has been looking forward to the late summer bank holiday they have been preparing for the third round of talks with the Commission's Art 50 Task Force on 28 Aug 2017 (the programme for which is here). They have also produced a number of position papers and future partnership papers on data protection, enforcement and dispute resolution, cross-border civil judicial cooperation and future customs arrangements even though none of those "future partnership issues" is yet on the table.

The most interesting of the "future partnership" position papers is the enforcement and dispute resolution position paper which I discussed in HMG's Enforcement and Dispute Resolution Position Paper 23 Aug 2017 and the data protection paper which I discussed in HMG's Exchange and Protection of Personal Data Position Paper in my Data Protection blog today.

The enforcement and dispute resolution position paper has given rise to a lot of comment much of it uninformed because of the inclusion of the adjective direct in the first line of the paper.  The sentence reads:

"In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU)."

The Court of Justice determines disputes that arise under the EU treaties which cease to apply to automatically under art 50 (3) of the Treaty of European Union or the coming into force of a withdrawal agreement whichever happens first. In that sense, the jurisdiction of the Court of Justice will end. It will no longer be possible for the Commission to take infringement proceedings against our government for failing to implement a directive or for an English court to refer an issue of Union law that arises in English litigation to the Court under art 267 of the Treaty on the Functioning of the European Union.  But the Court will continue to influence our law for many years to come and perhaps indefinitely by virtue of the incorporation of EU legislation and case law into our national law under the provisions of the European Union (Withdrawal) Bill. Moreover, as clause 6 (2)  of the Bill permits courts in the UK to have regard to decisions of the Court of Justice after we leave the Union its decisions will continue to have considerable persuasive authority indefinitely.

I criticized the position paper but on the grounds that it guarantees no rights for citizens including those of our own country to take proceedings against our government if they suffer loss or damage by reason of its failure to implement an obligation under any withdrawal agreement that we may make with the remaining member states or of any derogation that it may make from such agreement. To my mind, that is much more fundamental.

The data protection paper is much more sensible. We need to ensure the unrestricted flow of personal data between Britain and the UK if our service industries are to continue to do business in Europe. The same is, of course, true of the service industries of the remaining member states. The difference is that they could survive disruption much better than us because they could still do business freely with each other.  The financial services industries in say Frankfurt, Paris, Amsterdam, Dublin and Madrid might even do well if it became more difficult to exchange data with London. The European negotiators almost certainly know that and will be no hurry to do any favours for us unless and until they see some concessions on the issues that matter to them.

Should anyone wish to discuss this article or Brexit in general, call my chambers on +44 (0)20 7404 5252 during normal office hours or send me a message on my contact form.

What will happen to the GDPR in the United Kingdom after Brexit?

Standard YouTube Licence

Jane Lambert

Art 50 (3) of the Treaty of European Union provides:

"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

When the treaties cease to apply to the United Kingdom, all the directives and regulations that will have been made under them will fall away too. That need not matter so far as the directives are concerned since they will have been implemented by United Kingdom enactments that remain in force indefinitely, but regulations are different in that they take effect independently. That is why clause 3 (1) of the European Union (Withdrawal) Bill is intended to incorporate all regulations into English and Weksh or, as the case may be, Scottish or Northern Irish law.

The General Data Protection Regulation (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 (General Data Protection Regulation) (Text with EEA relevance) will automatically come into force on 25 May 2018 and will remain part of our law until Brexit day. Then it will cease to apply unless it is preserved by national legislation.

When I wrote what is now Chapter 10 of Helen Tse's Doing Business after Brexit towards the end of last year, I expected the GDPR to be preserved by what we then called the "Great Repeal Bill." The Department for Culture Media and Sport's Statement of Intent of 7 Aug 2017 reveals a different approach. The GDPR will be superseded by the provisions of a new Data Protection Bill at least part of which will come into force on Brexit day.

No draft of the bill has yet been published but a press release dated 7 Aug 2017 announces that the new statute will:

• "Make it simpler to withdraw consent for the use of personal data
• Allow people to ask for their personal data held by companies to be erased
• Enable parents and guardians to give consent for their child’s data to be used
• Require ‘explicit’ consent to be necessary for processing sensitive personal data
• Expand the definition of ‘personal data’ to include IP addresses, internet cookies and DNA
• Update and strengthen data protection law to reflect the changing nature and scope of the digital economy
• Make it easier and free for individuals to require an organisation to disclose the personal data it holds on them
• Make it easier for customers to move data between service providers."

The press release also announces new criminal offences to deter organizations from either intentionally or recklessly creating situations where someone could be identified from anonymized data.

As Chapter 3 of the Statement of Intent indicates, many of those provisions will have been introduced by the GDPR but not all of them. The new bill will contain extra provisions such as one conferring on data subjects a power "to require social media platforms to, on request, delete information held about them at the age of 18" (see page 14 of the Statement).

This Bill will affect everyone whose records are held on computer and indeed everyone who holds and processes such records though there will be some industries that are particularly affected such as fintech and healthcare. I will keep an eye on the legislation for them.

It was my job to follow this topic long before we had such legislation in this country my first instructions being to advise on the consequences of the Austrian data protection statute for businesses here which I would have received in 1982 or 1983. I attended the first conferences on trans-border data flows which were organized by the International Bar Association in Toronto and the International Telecommunications Union in Geneva in 1983. I contributed the first chapters on data protection to Butterworths' Atkin's Court Forms and Encyclopedia of Forms and Precedents in 1984 for which I  interviewed the first data protection registrar, Eric Howe, at Water Lane in Wilmslow. I have continued to receive instructions on data protection and related areas of the law ever since.

I am compiling links to everything that I have written on the topic for a new blog to be known as NIPC Data Protection which, like this one, will be integrated with NIPC Law and NIPC News. I will tweet about important developments from my @nipclaw account and post them to Linkedin and Facebook.  Should anyone wish to discuss this article or data protection, privacy or trans-border data flow in general, he or she should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.