Brexit highlights—1 January 2021

Brexit highlights—1 January 2021

These Brexit highlights bring you a summary of the latest Brexit news and legislation updates from across a range of LexisNexis® practice areas, collated on 1 January 2021. This special IP completion day edition also provides tips and analysis on the immediate considerations and priorities for lawyers, with links to essential guidance and further reading.

IP completion day—what happens next?

The Brexit transition/implementation period ended at 11 pm on 31 December 2020, marking ‘IP completion day’—a significant moment for UK law.

How did we get here?

At 11 pm on 31 January 2020 (exit day), the UK ceased to be an EU Member State. Since then, the UK’s relationship with the EU has been governed by the Withdrawal Agreement negotiated during the Article 50 withdrawal period. Exit day marked the start of a time-limited transition or implementation period, during which the transitional arrangements provided in Part 4 of the Withdrawal Agreement were applied. As noted above, the transition period ended at 11 pm on 31 December 2020 (referred to in UK law as ‘IP completion day’).

The transition period was effectively a standstill period, which was introduced to maintain the legal status quo while the UK and the EU worked to implement the Withdrawal Agreement and negotiate the terms of the future UK-EU relationship. The European Commission described the transition period as ‘business as usual for citizens, consumers, businesses, investors, students and researchers in both the EU and the United Kingdom’.

What happens next?

The transitional arrangements put many of the legal effects of Brexit on hold. IP completion day brings most of the key transitional arrangements to an end (subject to certain provisions to allow for the winding-down of transition, and conclusion of matters ongoing or incomplete at the end of the transition period). From this point, significant changes begin to take effect across the UK’s legal regime:

● UK moves from transitional to full third country status outside the EU Single Market and Customs Union (resulting in legal and operational changes regardless of the trade deal agreed between the UK and EU)

● European Communities Act 1972 (ECA 1972) repeal comes into full effect

● Retained EU law is incorporated into domestic law

● Brexit legislation deferred for the transition period comes into force

● Northern Ireland Protocol to the Withdrawal Agreement becomes operational

● UK’s international agreements with EU and third countries commence (to the extent agreed)

● UK trades under new trading arrangements, WTO terms and contingency agreements (where applicable)

Exit day is still key in terms of being the date the UK ceased to be an EU Member State, but in terms of the legal impact, IP completion day is the date that the majority of key domestic legal changes associated with Brexit begin to take effect.

With various transition workstreams running right up to the wire and an agreement on the future UK-EU relationship announced at the very last moment, domestic preparation for these changes has been challenging and there remain a vast number of areas subject to potential further change as the UK completes its preparation after the event and outstanding matters for negotiation with the EU are resolved (including full ratification and implementation of the deal, additional protocols and supplementary agreements, data adequacy, financial services equivalence, common frameworks etc).

Alongside this work, further reforms and legal changes are anticipated as the UK government continues to develop and implement its broader domestic and international policy. For lawyers helping clients to navigate the impact of Brexit, IP completion day may be considered the end of the beginning, rather than the beginning of the end!

This special IP completion day edition of the Brexit highlights contains updates on the latest headlines, legislation and guidance, as well as highlighting some of the key IP completion day considerations and priorities across various areas of legal practice.

Feature analysis—UK-EU Trade and Cooperation Agreement

Last minute trade deal

On 24 December 2020, the European Commission and UK government announced an agreement in principle on the legal terms of the future UK-EU relationship. Announced just one week before IP completion day, the EU-UK Trade and Cooperation Agreement (TCA), and associated agreements, came at the eleventh hour, leaving little time to put in place the necessary legal and practical arrangements to make the deal fully operational on 1 January 2021.

UK and EU leaders quickly endorsed the agreement, which was signed on 30 December 2020 and then approved by the UK Parliament. However, the deal will not fully enter into force until ratified in the European Parliament in 2021. In the circumstances, the UK and EU agreed that the deal would apply provisionally from 1 January 2021, pending full ratification by the EU.

For background reading on the key developments, see:

● Brexit Bulletin—UK and EU announce new Trade and Cooperation Agreement, LNB News 24/12/2020 76

● Brexit Bulletin—Draft EU-UK Trade and Cooperation Agreement published, LNB News 28/12/2020 12

● Brexit Bulletin—Council decision paves the way for signing of the EU-UK Trade and Cooperation Agreement, LNB News 30/12/2020 19

● Brexit Bulletin—Parliament approves the European Union (Future Relationship) Bill, LNB News 30/12/2020 21

For further reading on deal and what it comprises, see: Brexit Bulletin—examining the EU-UK Trade Cooperation Agreement.

Key documents

The TCA and associated agreements, declarations and legislation were published in the Official Journal of the European Union (OJEU) on 31 December 2020, pending final legal-linguistic revision. The finalised versions will be published in the OJEU by 30 April 2021. Key documents published include:

● Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, on the one part, and the Government of the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ L444 31.12.2020, p 14)

● Agreement between the European Union and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Security Procedures for Exchanging and Protecting Classified Information (OJ L444 31.12.2020, p 1463)

● Agreement between the European Atomic Energy Community and the Government of the United Kingdom of Great Britain and Northern Ireland for Cooperation on the Safe and Peaceful Uses of Nuclear Energy (OJ L445 31.12.2020, p 5)

● Declarations referred to in the Council Decision on the signing on behalf of the Union, and on a provisional application of the Trade and Cooperation Agreement and of the Agreement concerning security procedures for exchanging and protecting classified information (OJ L444 31.12.2020, p 1475)

● Exchange of letters on the provisional application of the Agreement between the European Atomic Energy Community and the Government of the United Kingdom of Great Britain and Northern Ireland for Cooperation on the Safe and Peaceful Uses of Nuclear Energy (OJ L445 31.12.2020, p 23)

For details, see: Brexit bulletin—EU-UK Trade and Cooperation Agreement published in the Official Journal, LNB News 31/12/2020 18.

Practice area/sector view

While the news of the deal, and the additional certainty it provides compared to a no-deal outcome, has been broadly welcomed, in the short term, it has introduced some additional uncertainty around last-minute IP completion day preparations, and the legal and practical implications in various sectors and areas of practice. Stakeholders were warned of inevitable disruption and urged to monitor the official guidance and continue preparations based on the information available, as many of the changes anticipated at the end of the transition period would occur in any event on 1 January 2021.

For comment and analysis, see:

● Comment—Relieved? UK and EU agree post-Brexit deal

● Comment—EU-UK Trade and Cooperation Agreement

See below for further analysis on some of the key elements and implications in various areas of legal practice.

● Commercial: For businesses that have not already assessed the impact of Brexit on their supply chains and how they do business, there is now at least certainty on what is required when exporting and importing goods across the UK-EU border (and increasing clarity on goods moving between UK and Northern Ireland). Businesses that are not prepared could face increasing costs through delays or penalties from 1 January 2021. Another very real risk for un/under-prepared businesses is that suppliers or customers in the supply chain will switch to those that are prepared, to help ensure the smooth flow of goods under the new UK-EU trading regime. Andrew Hood and Richard Tauwhare of Fieldfisher consider the impact of the TCA on supply chains. See: Comment—What the EU-UK Trade and Cooperation Agreement means for supply chains

● Corporate Crime: Home Secretary, Priti Patel, hailed the agreement of the TCA, which contains provisions to ensure co-operation on security related matters after IP completion day. The UK and EU are said to have agreed processes to streamline extradition arrangements, to enable ’fast and effective’ information exchanges on DNA, fingerprints and vehicle registration data and criminal records data, and arrangements providing for continued transfers of Passenger Name Record data. The Home Office also highlighted measures allowing for continued operational co-operation with Europol and Eurojust. See: Home Secretary hails ‘comprehensive’ EU-UK post-Brexit security agreement, LNB News 28/12/2020 38

● Dispute Resolution: The TCA contains extensive provisions on judicial and law enforcement co-operation in relation to criminal matters, but is silent on civil judicial co-operation, leaving open questions regarding the immediate implications for cross-border dispute resolution after IP completion day. However, noting that the agreement on the TCA may give cause for cautious optimism in respect of the UK’s application to accede to the Lugano Convention, Gordon Nardell QC and Michal Hain, barristers at Twenty Essex, comment on the agreement and its impact for cross-border dispute resolution and legal services. The Law Society of England and Wales has welcomed the agreement but noted its limitations in the fields of cross-border legal services and dispute resolution. See: Comment—EU-UK Trade and Cooperation Agreement impact on cross-border dispute resolution, LNB News 30/12/2020 6

● Family: The TCA consists of about 400 pages of text along with about 850 pages of Annexes, the titles of which indicate strongly there would be no family law aspects. David Hodson OBE MICArb, partner and co-founder of the International Family Law Group LLP, considers the impact of the TCA on family law. See: Comment—EU-UK Trade and Cooperation Agreement impact on family law

● Financial Services: The TCA does little to facilitate access to the EU’s single market for UK financial services from 1 January 2021. In the document stretching to over 1,200 pages, ‘financial services’ appears six times (‘fish’ appears sixteen times). See: EU-UK Trade and Cooperation Agreement light on financial services detail, LNB News 28/12/2020 36

● Energy: Energy emerged in August 2020 as a rare area of progress in the difficult talks over the UK's post-Brexit trading relationship with the EU and the TCA establishes 'an ambitious framework for co-operation on renewable energy and tackling climate change’, including an agreement on nuclear energy. According to MLex, UK and EU energy companies can breathe a sigh of relief. See: EU-UK energy trading co-operation features in post-Brexit trade deal

● Environment: The TCA agreed between the EU and the UK contains some ambitious language on climate change, but the effect of the broader provisions on environmental protection remains uncertain. The preamble to the TCA acknowledges the parties' commitment to high environmental standards and the fight against climate change. Provisions concerning environmental matters are scattered, but the underlying principle is that the parties remain free to determine their own domestic regulation on environment and climate change. Vanessa Jakovich, partner at Freshfields Bruckhaus Deringer, comments on the agreement, noting that there is room for optimism in terms of future co-operation on environmental regulation after IP completion day. See: Comment—EU-UK Trade and Cooperation Agreement impact on environmental law, LNB News 29/12/2020 11

● Information Law: The TCA contains provisions relating to data protection, though a data adequacy decision from the EU remains pending. In the short term, the most significant from a compliance perspective is the temporary ‘bridging mechanism’, which allows the free flow of data from the EEA to the UK to continue after IP completion day, until adequacy decisions for the UK can be adopted under the EU General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR), and Directive (EU) 2016/680 (the Law Enforcement Directive). Eleonor Duhs, director and barrister at Fieldfisher, comments on the agreement, and its impact for UK-EEA data flows. See: Comment—EU-UK Trade and Cooperation Agreement impact on data protection, LNB News 29/12/2020 23

● IP and Life Sciences: The TCA contains provisions on Intellectual Property and Life Sciences, setting minimum standards consistent with existing UK and EU laws. Key sections include Title V (Intellectual Property) in Part 2 of the TCA and Annex TBT-2 (on medicinal products). Trevor Cook, partner at Wilmerhale, comments on the provisions, noting in particular that the TCA does not call for changes to existing arrangements, guidance and preparation for IP completion day. See: Comment—EU-UK Trade and Cooperation Agreement provisions on IP and life sciences, LNB News 29/12/2020 9

● Public Sector: With the dust settling on the TCA, the UK appears to be the victor on State aid—at least at the moment, according to MLex. However, there are big decisions ahead over what its next moves will be. The eleventh-hour deal allows the UK (minus Northern Ireland) to set up its own subsidy control regime and not have to follow the EU’s State aid regime or procedures. Significantly, it does not have to opt for ‘ex-ante’ approval of subsidies and can have an ‘ex-post’ regime if it chooses to do so. See: Comment—UK’s Brexit State aid win suggests more flexibility though risk of tensions

● Restructuring & Insolvency: Although there are a few passing references to insolvency (eg in relation to State aid), there is nothing in the TCA covering cross border insolvency. See: Impact of the EU-UK Trade and Cooperation Agreement on cross border insolvency

● TMT: The TCA contains a number of sections of interest to technology and telecoms lawyers but does not fundamentally change the position that most businesses have prepared for. One exception to this is the introduction of tariff-free trading for tech or telecoms businesses involved in importing or exporting hardware between the EEA and the UK. See: Technology and telecoms aspects of the EU-UK Trade and Cooperation Agreement

At LexisNexis®, we are keeping matters under review and adding new materials as we continue to address relevant updates, developments, issues and queries as matters unfold.

Impact of the deal on IP completion day

In terms of the impact on IP completion day, both the UK and EU acknowledged the ‘big changes’ taking place on 1 January 2021, regardless of the deal. IP completion day brings free movement between the UK and EU to an end and places the UK outside the EU Single Market and Customs Union, with UK access to the EU market subject to additional restrictions, conditions and bureaucracy.

Though the deal is said to ‘limit the disruption’ of the ‘unavoidable changes’ associated with the UK’s third country status, the EU guidance noted:

‘On 1 January 2021, the United Kingdom will leave the EU Single Market and Customs Union, and all EU policies. This was its choice. As a result, it will lose all the rights and benefits it had as an EU Member State, and will no longer be covered by the EU’s international agreements. This will bring far-reaching changes, affecting citizens, businesses, public administrations and stakeholders in both the EU and the UK.’

The UK warned businesses and individuals to be prepared for the legal, practical and procedural changes taking effect from 1 January 2021, and associated disruption. Meanwhile, business organisations, such as the Confederation of British Industry, called for further technical guidance and support to help aid understanding and compliance with the legal terms of the deal. Tony Danker, CBI Director-General, commented:

‘[the deal] will come as a huge relief to British business at a time when resilience is at an all-time low. But coming so late in the day it is vital that both sides take instant steps to keep trade moving and services flowing while firms adjust. Firms will immediately study the details, when they can, to understand the implications for their companies, customers and clients but immediate guidance from government is required across all sectors.’

Much of the official guidance issued before IP completion day remains relevant, though it is likely to be subject to further amendment and review after IP completion day. Indeed, the government published over 300 new and updated guidance documents on IP completion day alone (see below headlines for details).

As revised Brexit notices and guidance documents are being issued it is a good idea to bookmark the relevant guidance pages and check for updates, in particular:

● GOV.UK—Transition guidance and regulation

● European Commission—Getting ready for the end of the transition period

Details of the latest guidance updates are outlined below. For further reading, see: Brexit transition hub.

Editor’s note—a message from LexisNexis®

It seems strangely fitting that at the end of a highly unusual year, we mark it with the passing of IP completion day, which instigates changes to our domestic legal system on a scale and at a pace never seen before. While we are sure the deal reached between the UK and EU will have been widely welcomed by our customers, we are acutely aware that it leaves many questions unanswered, and significant complexity to untangle. Many of our teams across LexisNexis® UK have been working tirelessly since the EU referendum result in 2016 to provide the most reliable and up-to-date sources of information about the implications of these once-in-a-generation changes. Though IP completion day may be seen by many to be ‘the end’, there is no doubt that for the customers we serve it is really only the beginning, and we will continue to monitor and provide guidance on this new era throughout 2021 and beyond.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit bulletin—EU-UK Trade and Cooperation Agreement published in the Official Journal

The TCA and associated agreements, declarations and legislation have been published by the EU in the OJEU. The deal applies provisionally from 1 January 2021, pending full ratification by the EU. The OJEU notes that due to the ‘very late availability’ of the versions of the Agreements in the EU official languages, the documents have been published without final legal-linguistic revision. The finalised versions will be published in the OJEU by 30 April 2021.

See: LNB News 31/12/2020 18.

Brexit Bulletin—GB-EU Border Operating Model updated following EU-UK Trade and Cooperation Agreement

The Cabinet Office has published a revised version of the government’s GB-EU Border Operating Model following the signature of the TCA, and associated arrangements agreed between the UK and EU. The updated model includes a ‘navigation guide’ to the TCA, highlighting key provisions and the changes to the Border Operating Model associated with the deal. It also includes a checklist of the key requirements which will continue to apply under the Border Operating Model, along with details of requirements which will change under the terms of the TCA. Additional case studies have also been added, representing ‘end-to-end scenarios’ for the import and export of goods between Great Britain and the EU from 1 January 2021.

See: LNB News 31/12/2020 26.

Brexit Bulletin—DHSC letter to health and social care sectors on EU-UK Trade Cooperation Agreement

The Department of Health and Social Care (DHSC) has published an open letter to the health and social care sector to update stakeholders on the government’s new TCA and its preparations for the end of the transition period. The letter expands on the DHSC’s ‘multi-layered’ approach to ensure continuity of medical supplies post IP completion day, which it originally set out in August 2020. Further, it sets out the agreement on reciprocal healthcare which has been reached with the EU using a new UK Global Health Insurance Card (GHIC) to replace the previous European Health Insurance Card (EHIC) scheme.

See: LNB News 30/12/2020 3.

Brexit Bulletin—Withdrawal Agreement Joint Committee publishes decision establishing arbitration panel

The Cabinet Office has published the Decision of the Withdrawal Agreement Joint Committee on establishing a list of 25 persons to serve on an arbitration panel under the Withdrawal Agreement. The list has been compiled pursuant to Article 171(1) of the Withdrawal Agreement, and includes five chairpersons, jointly proposed by the EU and UK, and ten ordinary members each for the UK and EU. The Decision comes into force on 1 January 2021.

See: LNB News 30/12/2020 16.

Brexit Bulletin—Withdrawal Agreement Joint Committee publishes decision on social security co-ordination

The Cabinet Office has published the Decision of the Withdrawal Agreement Joint Committee on social security co-ordination between the UK, EU, European Free Trade Agreement (EFTA) States. The decision has been complied pursuant to Article 33(1) of the Withdrawal Agreement and comes into force on 1 January 2021.

See: LNB News 31/12/2020 16.

Brexit Bulletin—UK, Gibraltar and Spain agree political framework for future relationship negotiations

Following the signature and UK ratification of the TCA, and associated agreements, the Foreign, Commonwealth & Development Office has issued a statement from Foreign Secretary, Dominic Raab, announcing an agreement on a political framework to form the basis of further negotiations on a separate agreement between the UK and the EU regarding Gibraltar (to which the TCA does not apply). In the meantime, the parties are said to be committed to mitigating the impact of the end of the Brexit transition period for Gibraltar.

See: LNB News 31/12/2020 20.

Brexit Bulletin—EU grants UK ‘national listed status’ for SPS products

The Department for Environment, Food & Rural Affairs (Defra) has confirmed that the UK has secured third country listed status for importing sanitary and phytosanitary (SPS) products into the EU, after the EU confirmed that the UK met necessary health and biosecurity assurances required. The UK's listing was a unilateral decision by the EU, which was outside the scope of the future UK-EU relationship negotiations. The listed status ensures that the export of certain SPS products to the EU can continue (subject to certain notable exclusions).

See: LNB News 28/12/2020 5.

Brexit Bulletin—provisional catch limits to be set as negotiations continue

Defra has announced that the government intends to set provisional imminent catch limits for UK fishermen in accordance with the TCA in order to ensure that fishing continues uninterrupted until the conclusion of annual fisheries negotiations with the EU, Norway and Faroe Islands.

See: LNB News 31/12/2020 19.

Brexit Bulletin—Defra announces new chemicals regulatory framework

Defra has announced the launch of the UK’s new independent chemicals regulatory framework, UK REACH. The new regime will apply from 1 January 2021 and applies to all business which make, sell or distribute chemicals into the UK.

See: LNB News 31/12/2020 12.

Brexit legislation updates

This section contains Brexit news headlines relating to Brexit-related primary legislation and legislative preparation for Brexit generally.

Brexit Bulletin—Parliament approves the European Union (Future Relationship) Bill

Following signature of the TCA on 30 December 2020, primary legislation was fast-tracked through Parliament in order to implement the TCA, and associated agreements, into UK law. Parliament was recalled on 30 December 2020 to debate the deal and approve the European Union (Future Relationship) Bill, which was passed under an extremely expedited fast-track process. While the debate raised many questions over the content of the deal, the implementing legislation, and the lack of parliamentary scrutiny, the Bill passed without amendment.

See: LNB News 30/12/2020 21.

European Union (Future Relationship) Act 2020

This Act makes provision to implement the TCA and associated agreements, and further provision in connection with the UK’s future relationship with the EU and its Member States, as well as related provision on specific matters concerning trade and security, including provisions on criminal records, passenger name record data, evidence and extradition, customs, tax, social security, and privileges and immunities, and for connected purposes. It came into force partly on 30 December 2020, and comes into force fully on such day as a Minister of the Crown may by regulations appoint. Different days may be appointed for different purposes.

See: LNB News 31/12/2020 24.

Examining the European Union (Future Relationship) Act 2020

The post-Brexit trade deal between the UK and the EU was finally agreed just days before IP completion day. This left very little time for either side to implement the TCA, and associated agreements, within their own legal systems. On the EU side, Article 218(5) TFEU allowed for provisional application the deal from 1 January 2021, pending ratification. This meant that the European Parliament was able to postpone its meeting to debate the agreement until the new year, but in the UK urgent primary legislation was required before IP completion day. The European Union (Future Relationship) Bill was therefore introduced to Parliament on 30 December 2020, and having completed all its Parliamentary stages in a single day, the Bill received Royal Assent as the European Union (Future Relationship) Act 2020. Alfred Artley, barrister at Monckton Chambers examines the legislation and its implications for UK law.

See: Examining the European Union (Future Relationship) Act 2020

Statement of Changes in Immigration Rules—CP 361

The government has issued a Statement of Changes in Immigration Rules CP 361, together with an Explanatory Memorandum. The changes broadly took effect at 11 pm on 31 December 2020.

See: LNB News 31/12/2020 14.

PRA publishes PS30/20: BoE’s amendments under EU(W)A 2018: Changes before the end of the transition period

The Prudential Regulation Authority (PRA) has published policy statement PS30/20, which contains the final Bank of England (BoE) amendments under the EU(W)A 2018: Changes before the end of the transition period.

See: LNB News 28/12/2020 30.

PRA publishes PS29/20: Capital Requirements Directive V (CRD V): Final policy

The PRA has published policy statement PS29/20: ‘Capital Requirements Directive V (CRD V): Final policy’, which confirms that the policy published in PS26/20 (published by the PRA on 9 December 2020) as near-final has now been finalised and applies as set out in the PRA Rulebook Instruments in appendices 1-14 in PS29/20.

See: LNB News 28/12/2020 29.

Brexit SIs and sifting updates

This section contains updates on the latest final and draft Brexit SIs laid in Parliament, plus updates on proposed negative Brexit SIs laid for sifting.

Made Brexit SIs laid in Parliament

European Union (Future Relationship) Act 2020 (Commencement No. 1) Regulations 2020

SI 2020/1662: Certain provisions of the European Union (Future Relationship) Act 2020 came into force on IP completion day, while others come into force on 1 March 2021.

See: LNB News 01/01/2021 31.

Finance Act 2016, Section 126 (Appointed Day), Taxation (Cross-border Trade) Act 2018 (Appointed Day No 8, Transition and Saving Provisions) and Taxation (Post-transition Period) Act 2020 (Appointed Day No 1) (EU Exit) Regulations 2020

SI 2020/1642: This enactment is made in exercise of legislative powers conferred under the Finance Act 2016, the Taxation (Cross-border Trade) Act 2018 and the Taxation (Post-transition Period) Act 2020. This enactment appoints IP completion day as the day on which various provisions of primary legislation come into force in consequence of the UK exiting the EU.

See: LNB News 24/12/2020 64.

Customs and Tariff (Appointed Day) (EU Exit) Regulations 2020

SI 2020/1643: This enactment is made in exercise of legislative powers under the Taxation (Cross-border Trade) Act 2018. This enactment provides for the bringing into force on IP completion day the Regulations required for a replacement customs regime after the end of the Brexit transition period.

See: LNB News 24/12/2020 71.

Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Amendment) (EU Exit) Regulations 2020

SI 2020/1657: This enactment is made in exercise of legislative powers under the Taxation (Cross-border Trade) Act 2018 in preparation for IP completion day. This enactment amends two pieces of UK legislation in relation to customs, VAT and excise regimes. It came into force on IP completion day.

See: LNB News 01/01/2021 13.

International Tax Enforcement (Disclosable Arrangements) (Amendment) (No. 2) (EU Exit) Regulations 2020

SI 2020/1649: This enactment is made in exercise of legislative powers under the Finance Act 2019 in preparation for IP completion day. This enactment amends one piece of UK legislation in relation to mandatory automatic exchange of information in the field of taxation relating to reportable cross-border arrangements. It came into force on IP completion day.

See: LNB News 31/12/2020 2.

Extradition (Provisional Arrest) Act 2020 (Commencement No 1) Regulations 2020

SI 2020/1652: This enactment provides that certain provisions of the Extradition (Provisional Arrest) Act 2020 came into force on IP completion day or immediately after IP completion day.

See: LNB News 31/12/2020 7.

National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) (No 2) Regulations 2020

SI 2020/1659: This enactment is made in exercise of legislative powers under the National Health Service Act 2006 in preparation for IP completion day. This enactment amends one piece of UK legislation in relation to the making and recovery of charges for relevant services provided under the National Health Service Act 2006. It came into force on IP completion day.

See: LNB News 01/01/2021 2.

Agricultural Products, Food and Drink (Amendment etc) (EU Exit) Regulations 2020

SI 2020/1637: This enactment is made in exercise of legislative powers under the EU(W)A 2018 (EU(W)A 2018) in preparation for IP completion day. This enactment amends eight pieces of UK domestic secondary legislation and 17 pieces of retained direct EU legislation in relation to Geographical Indication schemes for agricultural products, foods and drinks. It came into force immediately before IP completion day.

See: LNB News 31/12/2020 11.

Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2020

SI 2020/1661: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment six pieces of UK legislation and nine pieces of retained direct EU legislation in relation to agricultural products and foodstuffs, aromatised wines, spirit drinks, and wine. It came into force in part immediately before IP completion day and in full on IP completion day.

See: LNB News 01/01/2021 6.

Official Controls (Animals, Feed and Food, Plant Health Fees etc.) (Wales) (Amendment) (EU Exit) Regulations 2020

SI 2020/1639: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment amends two pieces of Welsh legislation in relation to imports of products of animal origin intended for human consumption. It came into force on IP completion day.

See: LNB News 31/12/2020 6.

Cross-border Health Care (EU Exit) (Scotland) (Amendment) Regulations 2020

SSI 2020/478: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment amends two pieces of Scottish secondary legislation in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It came into force immediately before IP completion day.

See: LNB News 28/12/2020 8.

Rural Development (EU Exit) (Scotland) (Amendment) Regulations 2020

SSI 2020/477: This enactment is made in exercise of legislative powers under the EU(W)A 2018 and the Agriculture (Retained EU Law and Data) (Scotland) Act 2020 in preparation for IP completion day. This enactment amends six pieces of retained EU legislation in relation to rural development support in Scotland, the Scottish Rural Development Programme and the Common Agricultural Policy in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It came into force in part on IP completion day and in full on 1 January 2021.

See: LNB News 28/12/2020 7.

Invasive Non-native Species (EU Exit) (Scotland) (Amendment etc) Regulations 2020

SSI 2020/473: This enactment is made in exercise of legislative powers under the European Communities Act 1972 and the EU(W)A 2018 in preparation for IP completion day. This enactment amends two pieces of UK legislation and two pieces of retained EU legislation in relation to the prevention and management of the introduction and spread of invasive alien species in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It came into force on IP completion day.

See: LNB News 24/12/2020 75.

Act of Adjournal (Challenges to Validity of EU Instruments (EU Exit)) (Amendment) 2020

SSI 2020/470: This enactment is made under the powers conferred by the Criminal Procedure Rules 1996. This enactment amends one piece of Scottish secondary legislation relating to challenging the validity of EU instruments. It came into force immediately before IP completion day.

See: LNB News 24/12/2020 63.

Animals (Health, Identification, Trade and Veterinary Medicines) (Amendment) (EU Exit) Regulations (Northern Ireland) 2020

SR 2020/353: This enactment is made in exercise of legislative powers conferred under the EU(W)A 2018. This enactment amends nine pieces of Northern Ireland secondary legislation in order to ensure they can continue to operate effectively after the end of the transition period. It came into force in part immediately before IP completion day and in full on IP completion day.

See: LNB News 28/12/2020 10.

Conflict Minerals (Compliance) (Northern Ireland) (EU Exit) Regulations 2020

SR 2020/1664: This enactment is made in exercise of legislative powers conferred under the EU(W)A 2018. These Regulations implement one EU Regulation in relation to laying down supply chain due diligence obligations for Union importers of conflict minerals, required in light of the Northern Ireland Protocol. These Regulations came into force on 1 January 2021.

See: LNB News 01/01/2021 7.

Libya (Sanctions) (EU Exit) Regulations 2020

SI 2020/1665: This enactment is made in exercise of legislative powers under the Sanctions and Anti-Money Laundering Act 2018 in preparation for IP completion day. This enactment gives effect to most of the UK’s obligations under United Nations Security Council Resolutions (UNSCR) 1970 (2011) in relation to UN sanctions imposed against Libya due to its violation of human rights. It came into force in part on 30 December 2020 and in full on IP completion day.

See: LNB News 01/01/2021 4.

Sanctions (Overseas Territories) (Revocations) Order 2020

SI 2020/1604: This Order revokes a number of Orders in Council which give effect in specific British overseas territories to EU and other sanctions regimes made prior to the end of the transition period. The sanctions orders are being revoked by this Order because they will have been superseded by a new suite of Orders in Council that will come into effect from the end of the transition period and extend with modifications UK sanctions regulations made under Part 1 of the Sanctions and Anti-Money Laundering Act 2018 to the specified territories. This Order comes into force in part immediately after the Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2020, the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 2) Regulations 2020, the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 3) Regulations 2020, the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 4) Regulations 2020, the Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020 and the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 5) Regulations 2020 come into force, and in full on IP completion day.

See: LNB News 24/12/2020 37.

ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (Overseas Territories) Order 2020

SI 2020/1608: This enactment is made in exercise of legislative powers under the United Nations Act 1946 and the Sanctions and Anti-Money Laundering Act 2018 in preparation for IP completion day. It extends the ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019, as amended from time to time, and specific sections of the Sanctions and Anti-Money Laundering Act 2018, to all British overseas territories (except Bermuda and Gibraltar which implement sanctions through their own domestic legislation) with the modifications required to enable implementation and enforcement of the sanctions regime by the authorities in those territories. It comes into force immediately after the Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2020, the Sanctions (EU Exit) (Miscellaneous Amendments) (No 3) Regulations 2020 and the Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020 have come into force in the UK.

See: LNB News 24/12/2020 39.

Brexit transition guidance

Brexit Bulletin—new and updated Brexit transition guidance published on IP completion day

As the Brexit transition period came to an end at 11 pm on 31 December 2020, marking IP completion day in the UK, the government published over 300 items of new and updated Brexit transition guidance. While many of the updates are minor, including simple amendments to reflect the end of the transition period having occurred, a significant number of new documents and webpages were also published. Topics covered include, among others: movement of goods and services, immigration, travel, transport, professional qualifications, legal services, litigation, companies, data, telecoms, IP, life sciences, healthcare, education, energy, environment, benefits, pensions, EU funding and sanctions. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 1.

Brexit transition guidance updated following announcement of the EU-UK Trade and Cooperation Agreement

Following the announcement of the TCA, and associated agreements, agreed in principle between the UK and EU, a number of government departments have published updated guidance to help stakeholders prepare for the end of the transition period and beyond. Subjects covered in the updated guidance include audit and accounting, energy, legal services and UK participation in EU programmes. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 15.

Receiving EU funding—amended Brexit transition guidance from GDS

The Government Digital Service (GDS) has published updated guidance on receiving EU funding to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 30/12/2020 2.

Trade in goods—updated Brexit transition guidance from BEIS

The Department for Business, Energy & Industrial Strategy (BEIS), HM Revenue & Customs and the DHSC have published updated guidance on trade in goods to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 11.

Provision of Services Regulations—new Brexit transition guidance from BEIS

BEIS has published new guidance for service providers and Competent Authorities explaining how the Provision of Services Regulations will operate from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 21.

Providing services and travelling for business—updated Brexit transition guidance from DIT

The Department for International Trade (DIT) has published updated guidance on providing services and travelling for business from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. The guidance includes updated information to reflect the changes created by the TCA. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 10.

Overseas government procurement opportunities—updated Brexit transition guidance from DIT

The DIT has published updated guidance for UK businesses on overseas government procurement opportunities to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 28.

Trading with developing nations—updated Brexit transition guidance from DIT

The DIT has published updated guidance on trading with developing countries from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 19.

Road haulage and transport—updated Brexit transition guidance from DfT

The Department for Transport (DfT) and Driver and the Vehicle Standards Agency have published updated guidance on road haulage and transport to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 17.

International bus or coach services—updated Brexit transition guidance from DfT

The DfT has published updated guidance on running international bus or coach services and tours from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 19.

Exporting or moving live animals—updated Brexit transition guidance from Defra

Defra and the Animal and Plant Health Agency have published updated guidance on moving or exporting live animals, animal products, equines and fish from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 26.

Importing and exporting wine—updated Brexit transition guidance from Defra

Defra has published updated guidance on importing and exporting wine from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates

See: LNB News 28/12/2020 27.

Protecting food and drink names—additional Brexit transition guidance from Defra

Defra has published updated guidance for food and drink producers on geographical indication (GI) protection to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 18.

Benefits and pensions—updated Brexit transition guidance from DWP

The Department for Work and Pensions (DWP) has published updated guidance explaining the rights of UK nationals in the EU, the European Economic Area (EEA) or Switzerland to benefits and pensions from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 20.

National Insurance and social security—new Brexit transition guidance from HMRC

HM Revenue & Customs (HMRC) has published new guidance on National Insurance (NI) and social security contributions for UK and EU workers to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 6.

Rules of origin for goods—new Brexit transition guidance from HMRC

HMRC has published new guidance on the rules of origin requirements for goods moving between the UK and EU from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 20.

Claiming preferential rates of duty—new Brexit transition guidance from HMRC

HMRC has published new guidance on claiming preferential rates of duty on goods covered in the TCA and how to declare goods imported into the UK on import declarations to help stakeholders prepare for the end of the transition period. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 3.

Receiving goods into and removing goods from excise warehouses—new Brexit transition guidance from HMRC

HMRC has published new guidance on receiving goods into and removing goods from an excise warehouse from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 7.

Sending parcels—new Brexit transition guidance from HMRC

HMRC has published new guidance on sending parcels between Great Britain and Northern Ireland to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 31/12/2020 8.

Declaring cash in and out of the UK—new Brexit transition guidance from HMRC

HMRC has published new guidance for service providers and Competent Authorities explaining what to do when carrying cash amounting to €10,000 or more when entering or leaving Northern Ireland or £10,000 or more when entering or leaving Great Britain to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 22.

Producing Irish Whiskey, Cream, Poteen or Scotch Whisky—new Brexit transition guidance from HMRC

HMRC has published new guidance on applying for the Spirit Drinks Verification Scheme, how to submit brand information, fees and making sure the production process is compliant to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 24.

Moving goods to common or EU transit countries—further Brexit transition guidance from HMRC

HMRC has published further guidance on moving goods to common or EU transit countries, using common or EU transit to bring goods into or through the UK, and planning routes before moving goods to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 18.

Moving goods into NI—updated Brexit transition guidance from HMRC

HMRC has published updated guidance on trading and moving goods in and out of Northern Ireland to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 31/12/2020 23.

Registering to make an entry summary declaration in Great Britain—updated Brexit transition guidance from HMRC

HMRC has updated guidance on how to register to make an entry summary declaration for those who import goods into Great Britain to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 31/12/2020 13.

Using CHIEF for declaring goods in NI—updated Brexit transition guidance HMRC

HMRC has published updated guidance on using CHIEF for declaring goods into or out of Northern Ireland to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 31/12/2020 5.

Customs controls—updated Brexit transition guidance from HMRC

HMRC has updated and published guidance on notices to be made under the Customs Regulations to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 31/12/2020 21.

Excise Notices changes from 1 January 2021—updated Brexit transition guidance from HMRC

HMRC has published new excise notices to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 29/12/2020 24.

Application of EU guidance on good pharmacovigilance practices—new Brexit transition guidance from MHRA

The Medicines and Healthcare products Regulatory Agency (MHRA) has published guidance clarifying the expectations on the application of the EU guidance on good pharmacovigilance practices (GVP) from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 3.

Marketing authorisations—new and updated guidance from MHRA

The MHRA has published new and updated guidance on 150-day assessments for national applications for medicines, renewal of Marketing Authorisations (MAs) for medicines, rolling review for MA applications and procedural advice for Northern Ireland on applications for European Commission centralised MAs to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 30/12/2020 1.

Handling of Decentralised and Mutual Recognition Procedures—new Brexit transition guidance from MHRA

The MHRA has published new guidance on handling of Decentralised and Mutual Recognition Procedures approved or pending on 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 2.

Good manufacturing practice and good distribution practice—updated Brexit transition guidance from MHRA

The MHRA and DHSC have published updated guidance on good manufacturing practice (GMP) and good distribution practice (GDP) to help stakeholders prepare for the end of the transition period and beyond. The guidance provides that from 1 January 2021, GMP inspection outcomes from EEA regulatory authorities will continue to be recognised under a new mutual recognition agreement. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/12/2020 9.

Clinical trials—updated Brexit transition guidance from MHRA

The MHRA has published updated guidance on clinical trials to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 31/12/2020 9.

Beyond Brexit

Beyond Brexit—UK-Turkey trade continuity agreement signed

The UK and Turkey signed a trade continuity agreement on 29 December 2020. The signed Free Trade Agreement (FTA) will ‘secure existing preferential tariffs for the 7,600 UK businesses that exported goods to Turkey in 2019, ensuring the continued tariff-free flow of goods and protecting vital UK-Turkey supply chains in the automotive and manufacturing sectors’. Secretary of State for International Trade, Liz Truss, said: ‘Today’s deal covers trade worth more than £18 billion, delivers vital certainty for business and supports thousands of jobs across the UK in the manufacturing, automotive and steel industries.’ She added: ‘It paves the way for a new, more ambitious deal with Turkey in the near future, and is part of our plan to put the UK at the centre of a network of modern agreements with dynamic economies. More trade and investment will drive economic growth across our United Kingdom and help us build back stronger from Covid.’

See: LNB News 29/12/2020 15.

Beyond Brexit—UK–Cameroon Economic Partnership Agreement secured

The UK–Cameroon Economic Partnership Agreement (EPA) was reached on 30 December 2020. The agreement should ensure the current UK–Cameroon trading arrangements roll over from 1 January 2021. The EPA will maintain tariff-free market access to the UK and guarantees continued market access for UK exporters.

See: LNB News 30/12/2020 12.

Beyond Brexit—UK-Moldova trade continuity agreement signed

The Foreign, Commonwealth & Development Office has announced that a UK-Moldova Strategic Partnership, Trade and Cooperation Agreement (SPTCA) was signed on 24 December 2020. The SPTCA locks in the benefits of the existing UK-Moldova trading relationship (as contained in the EU-Moldova Association Agreement and Deep and Comprehensive Free Trade Agreement), worth £395m in 2019, ‘as far as possible’. The SPTCA also sets out ambitions for a stronger UK-Moldova relationship by strengthening political, economic, security and cultural ties, with the trading relationship already having grown 77% between 2015 and 2019.

See: LNB News 28/12/2020 1.

Beyond Brexit—trading with Pacific States from 1 January 2021

The DIT has updated the document collection collating guidance on trading arrangements between the UK and Pacific States from 1 January 2021 following the signing of the UK–Pacific EPA on 4 November 2020. The updated collection includes Memorandums of Understanding (MoUs) between the UK, Samoa, and the Solomon Islands setting out the arrangements for applying the effects of the agreement from 1 January 2021.

See: LNB News 30/12/2020 11.

Beyond Brexit—guidance for public authorities on subsidy controls from 1 January 2021

The Department for Business, Energy & Industrial Strategy (BEIS) has published guidance for UK public authorities explaining the UK’s international commitments on subsidy control, following the end of the Brexit transition period at 11 pm on 31 December 2020 (IP completion day). This includes guidance on the subsidies provisions in the TCA (which applies provisionally from 1 January 2021), as well as relevant World Trade Organization (WTO) rules on subsidies under the Agreement on Subsidies and Countervailing Measures (WTO ASCM), and other subsidy-related commitments under the UK’s FTAs with other countries. The guidance also contains information to help public authorities understand the application of EU State aid rules under the Northern Ireland Protocol to the Withdrawal Agreement. Although the guidance is non-exhaustive, all public authorities are urged to read it and assure themselves they understand their obligations under the UK’s commitments in relation to subsidies from 1 January 2021.

See: LNB News 01/01/0001 2684.

Beyond Brexit—DfE launches Turing scheme to replace Erasmus+ post-Brexit

The Secretary of State for Education, Gavin Williamson has announced that the Department for Education (DfE) has launched a new scheme to replace the UK's participation in Erasmus+ after IP completion day. The new Turing scheme seeks to provide funding for around 35,000 students to participate in placements and exchanges overseas, from September 2021. The programme will include countries across the world and aims to ‘deliver greater value for money to taxpayers’ than the Erasmus+ programme.

See: LNB News 28/12/2020 4.

IP completion day—the practice area/sector view

This section contains key Brexit news hand-picked by LexisPSL lawyers from their own practice areas.

Arbitration

The legal and practical implications of IP completion day for arbitration law and practice in England are likely to be minimal, with few (if any) adverse consequences, both for practitioners and for London as a leading seat of international arbitration globally. Nevertheless, the short, medium and long-term impacts of Brexit on the arbitration market in London and England cannot be separated completely from the overall impact of the UK’s withdrawal from the EU.

Following the publication of the TCA, arbitration practitioners may be interested to note the central role envisaged for arbitration in the agreement’s dispute settlement provisions (TCA, Part 6). Investment treaty arbitration practitioners will likely be interested in the TCA’s provisions on cross-border investment (TCA, Part 2). We will be publishing further analysis on these aspects of the TCA in due course. It is also relevant for arbitration practitioners that the TCA does not include provisions dealing with cross-border civil litigation. For guidance on the implications of IP completion day for litigation, see the ‘Dispute Resolution’ section below.

To find out more, see: What does IP completion day mean for arbitration?

For further updates from Arbitration, see: Arbitration weekly highlights—overview.

Banking & Finance

The implementation/transition period has effectively been business as usual for lending lawyers, but from IP completion day, the picture changes. The key impacts are:

● passporting falls away, affecting UK firms’ ability to do business in the EU—this impacts many finance related activities, including loans and derivatives trades

● onshoring of retained EU law affects EU law references and certain other clauses in loan, debt capital markets and derivatives documentation

● the Brussels regime falls away, impacting on governing law and jurisdiction considerations on transactions

Additional considerations will also apply for certain specialist finance transactions.

To find out more, see: What does IP completion day mean for lending lawyers?What does IP completion day mean for derivatives lawyers? and What does IP completion day mean for DCM lawyers?

For further updates from Banking & Finance, see: Banking & Finance weekly highlights—overview.

Commercial

The principles of English contract law are not changed by IP completion day, however, there are a number of areas of commercial law and practice that are impacted. Among other things, various legal and practical considerations arise in the following key areas:

● contract clauses

● contract breach and remedies

● consumer protection

● agency

● distribution

● franchising

● E-commerce

● intellectual property

● sale and supply of goods

● supply of services

● standard terms and conditions

To find out more, see: What does IP completion day mean for commercial?

For further updates from Commercial, see: Commercial weekly highlights—overview.

Construction

The repercussions of IP completion day for the construction sector will be felt on an ongoing basis, in the medium to long term, rather than from immediate change to construction law itself. The general uncertainty felt within the industry since the EU referendum in 2016 is likely to continue for some time and any impact on the economy can be expected to resonate heavily in the construction sector. Construction projects can take years to complete and, without any certainty as to the long term impacts of Brexit, planning projects, forecasting cost and accurately analysing risk has become much more difficult, making the market cautious. At project level, employers may face challenges in the availability of funding and in having sufficient confidence in the market to pursue projects. For contractors, the impact will come from bidding for projects with less certainty as to cost than they would ordinarily expect due to uncertainty regarding the availability of adequate labour, possible shortages of materials and/or delays in getting them into the country, and possible fluctuations in the cost of those materials, all of which could also lead to delays in projects being completed.

To find out more, see: What does IP completion day mean for construction?

For further updates from Construction, see: Construction weekly highlights—overview.

Corporate

The transitional arrangements under the Withdrawal Agreement kept key EU regulations in place for Corporate lawyers during the transition period, but as of IP completion day, there are certain changes to this picture. Depending on the terms of the future relationship between the UK and the EU, a number of potential changes to UK corporate law will take place. Key areas potentially impacted include:

● equity capital markets

● public company takeovers

● private M&A

● corporate joint ventures

● corporate governance

● accounts and reports

● audit

● market abuse

The status of, or applicable law in relation to, a number of pan-European corporate structures and markets will also be affected from IP completion day with various implications.

To find out more, see: What does IP completion day mean for corporate lawyers?

For further updates from Corporate, see: Corporate weekly highlights—overview.

Corporate Crime

The legal and practical impact of IP completion day on corporate crime law and practice in England and Wales is felt in a small number of areas. This is because criminal offences in the UK are created and enacted by domestic primary or secondary legislation which remains in force post-IP completion day. There are certain areas of corporate crime law and practice where the impact of IP completion day is greater, either because of changes to the manner in which the investigation of offences with EU counterparts is conducted or because the regulatory offences cross refer or apply standards or laws imposed by EU legislation. In these cases, some domestic regulatory offences, many of which had their origins in EU legislation, are amended in order to replace references to EU bodies with the UK equivalent bodies or to remove references to EU legislation or to the EU itself, but these are cosmetic amendments to ensure the legislation continues to operate effectively after IP completion day.

Some of the main areas of corporate crime practice impacted by IP completion day include financial and trade sanctions, extradition, criminal justice and judicial co-operation, money laundering, consumer protection, trading standards offences and food safety offences.

To find out more, see: What does IP completion day mean for corporate crime?

For further updates from Corporate Crime, see: Corporate Crime weekly highlights—overview.

Dispute Resolution

For dispute resolution practitioners, IP completion day triggers a range of general and specific considerations. General considerations include the transitional application of EU law, retained EU law (for applicable law), relevant international conventions and the increased importance of the laws of England and Wales. Specific cross-border considerations apply in a number of areas, including:

● applicable law

● jurisdiction

● service of documents

● taking of evidence

● mediation

● cross border processes

● recognition and enforcement of judgments

It is important to be aware that many of the considerations apply not only in relation to EU Member States, but also contracting states of the Lugano Convention 2007 (Iceland, Norway and Switzerland) and in some instances, contracting states of the Hague Convention on Choice of Court Agreements (Mexico, Montenegro and Singapore).

To find out more, see: Brexit post implementation period—considerations for dispute resolution practitioners.

For further updates from Dispute Resolution, see: Dispute Resolution weekly highlights—overview.

Employment

For employment lawyers, there are a number of areas of interest that will or may be impacted by IP completion day. In some cases, the precise impact will depend on the terms of the future UK-EU relationship, but key areas of interest include:

● continuing provisions of the Withdrawal Agreement (such as those relating to social security, frontier workers and dispute resolution)

● status and interpretation of EU-derived employment laws after IP completion day

● protection of workers’ rights

● implications of the end of freedom of movement for recruitment and employees

● business travel

● recognition of professional qualifications

● enforcement of employment contracts

● posted workers, frontier workers, agency workers

● tax and social security arrangements

● holidays and working time

● employer insolvency

Immediate change is not expected in some areas, for instance discrimination, equal pay and collective redundancy consultation. While change in other areas is not necessarily triggered by IP completion day, review and reform is anticipated. This is the case in respect of the whistleblowing framework for instance.

To find out more, see: What does IP completion day mean for employment lawyers?

For further updates from Employment, see: Employment weekly highlights—overview.

Energy

The UK’s energy sector has been intrinsically linked and shaped by the EU since the establishment of the Euratom Treaty and the EU Internal Energy Market (IEM). The impact of IP completion day will vary across the energy sector, but some of the key impacts are likely to include:

● the UK’s enduring relationship with the IEM and what form this will take (as yet not entirely clear)

● long-term electricity and gas interconnection between the UK and the EU, both physical interconnector regulation and funding and international trade in electricity and gas

● nuclear regulation under the NCA, in particular nuclear safety, nuclear site health and safety, civil nuclear security and safeguards and the transport of radioactive materials

● renewable energy’s regulatory regime, notably Renewable Energy Guarantees of Origin (REGOs), Guarantees of Origin of Electricity Produced from High-efficiency Cogeneration (CHPGOs), renewable microgeneration certification schemes and renewable energy generation subsidies

● the UK’s oil and gas sector and imposition of sanctions post-IP completion day

● a UK emissions trading scheme, rather than a carbon emissions tax, which replaces participation in the EU emissions trading scheme

To find out more, see:

● Energy and Brexit—the EU Internal Energy Market and international electricity and gas interconnection regulation and trade

● Energy and Brexit—Euratom and the UK Nuclear Sector

● Energy and Brexit—renewable energy

● Energy and Brexit—UK oil and gas

For further updates from Energy, see: Energy weekly highlights—overview.

Environment

The shape of environmental law is heavily impacted by IP completion day because so many environmental regimes stem from EU legislation. Many changes to environmental law come into effect on IP completion day via Brexit SIs, which amend retained EU law and implementing domestic regulations. Some of the changes are relatively minor to ensure the proper functioning of the law after IP completion day, while other changes are larger. Our legislation trackers cover the main Brexit SIs of interest to environmental lawyers and changes to regimes are reflected in content.

The areas most affected are:

● chemicals regimes—including the Registration, Evaluation and Authorisation of Chemicals (REACH), Classification, Labelling and Packaging (CLP), prior informed consent, biocidal products, ozone depleting substances and f-gas, pesticides and persistent organic pollutants regimes

● emissions trading—a UK emissions trading scheme, rather than a carbon emissions tax, will replace participation in the EU emissions trading scheme

● agriculture—the Agriculture Act 2020 heralds the introduction of a new system for providing financial assistance to farmers in England after Brexit and marks the beginning of the end of direct payments to farmers (see News Analysis: The impact of the Agriculture Act 2020)

● fisheries—the Fisheries Act 2020 provides, among other things, for the UK to leave the Common Fisheries Policy after IP completion day and the TCA provides more details on how fisheries will work

In addition, the government’s flagship Environment Bill is currently progressing through Parliament. The Bill will allow the setting of long-term, legally binding and joined-up targets tailored to England, embed consideration of environmental principles in future policy making and establish the Office for Environmental Protection (OEP). It also includes provisions relating to water and resource efficiency, air quality and environmental recall, water, nature and biodiversity and conservation covenants. Similar legislation is expected or in progress in the devolved administrations.

To find out more, see:

● Brexit—impact on environmental law

● Brexit—chemicals and hazardous substances

● Brexit—emissions trading and carbon pricing

● Environment Bill—snapshot

● Environment Bill—developments

● Brexit—guidance for businesses from IP completion day (environment)

For further updates from Environment, see: Environment weekly highlights—overview.

Family

For family lawyers, there are a number of implications and practical considerations arising on IP completion day. In relation to family law, the two main EU regulations likely to be encountered by practitioners on a day-to-day basis are Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis, also known as Brussels IIa) and Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations (the EU Maintenance Regulation). Both Brussels II bis and the EU Maintenance Regulation cease to have effect in UK law after IP completion day, subject to certain specific exemptions and rules for proceedings issued prior to IP completion day. The timing of the issue of proceedings, or the making of orders, will be critical. Family lawyers will therefore need to have an understanding of the jurisdictional and recognition and enforcement implications in particular.

After IP completion day, certain Hague Conventions will take on an increased importance in family law, see Practice Notes: 1996 Hague Convention—general principlesRecognition, enforcement and co-operation under the 1996 Hague ConventionRecognition of divorce and legal separation under the 1970 Hague Convention and The 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. While UK membership of the 2007 Lugano Convention ends on IP completion day, the UK government has indicated an intention to accede to the 2007 Lugano Convention in its own right and the UK’s application is pending. The 2007 Lugano Convention will be of significance to family lawyers in relation to the recognition and enforcement of judgments if the UK becomes a member.

To find out more, see: What does IP completion day mean for family law?

For further updates from Family, see: Family monthly highlights—overview.

Financial Services

The TCA does little to facilitate access to the EU Single Market for UK financial services from 1 January 2021. The TCA does not (and was not intended to) make provisions for financial services firms in the UK to access the Single Market. As a result, from 1 January 2021, UK financial services firms lose their passporting rights. Passporting has allowed firms to sell their services into the EU from their UK base without the need for additional regulatory clearances.

The European Commission at the outset of the negotiations stressed the importance of ‘respecting the parties’ regulatory and decision-making autonomy’ and insisted that financial services would be subject to unilateral equivalence decisions made by the EU and now the UK.

Equivalence decisions are unilateral decisions of the parties. They are not covered in the TCA and as financial services in the EU are covered by numerous regulations it is not possible for the EU to issue one equivalence decision to maintain the parties’ current level of market access.

One equivalence decision has already been taken in relation to recognising the three central counterparties (CCPs) established in the UK as third country Central Counterparties (TC-CCPs). As TC-CCPs, they will continue to be eligible to provide their services in the EU after the end of the transition period. Overall, there are some 59 areas where equivalence decisions are possible.

Coming under an EU equivalence regime is very different to benefiting from passporting rights. The existing equivalence regimes under EU law differ significantly in their scope, operation and impact. Only a few enable third-country firms to provide services to EU clients and counterparties without an authorisation in the EU, but even then are subject to conditions that are more restrictive than for EU firms benefiting from a passport. Others merely provide more limited accommodations to ease cross-border activity. All the regimes allow equivalence to be withdrawn unilaterally.

Taking the above into account, from IP completion day, key impacts on financial services firms include:

● as mentioned above, the loss of single market passports—this has the potential to affect the ability of financial institutions to carry on certain aspects of their cross-border business

● existing contractual obligations for financial institutions to provide cross-border financial services—fulfilling these obligations may breach local licensing requirements following the loss of passporting rights

The loss of relevant single market passports means that firms should have taken steps to:

● analyse the extent to which they rely on such licences—eg for banking services under the Capital Requirements Directive 2013/36/EU (CRD IV) and the Capital Requirements Regulation (EU) 575/2013 (CRR) and for investment services under MiFID II and MiFIR

● identify any exemptions which may be available

● consider maintaining an EU presence (for UK firms that wish to provide relevant financial services in the EU)

● consider applying for a UK licence (for EU firms that wish to provide relevant financial services in the UK)

To find out more regarding the impact of Brexit on key financial services topics and to focus on financial services statutory instruments pursuant to the EU(W)A 2018, see:

● Brexit and financial services: materials on the post-Brexit UK/EU regulatory regime

● Brexit—Financial Services—Statutory Instruments (SI) tracker

To find out more regarding the UK’s temporary transitional arrangements, see:

● Brexit and financial services—the temporary permissions regime (TPR)

● Brexit and financial services—temporary transitional powers (TTP)

● Brexit and financial services—the financial services contracts regime (FSCR)

For further updates from Financial Services, see: Financial Services weekly highlights—overview.

Immigration

European Economic Area (EEA)/Swiss citizens (termed ‘EEA citizens’ for these purposes) and their family members have previously benefited from EU free movement rights, which are primarily implemented in the UK by the Immigration (European Economic Area) Regulations 2016 (EEA Regs 2016), SI 2016/1052. Though the EEA Regs 2016 technically become retained EU law on IP completion day, they are immediately revoked, in addition to other provisions on the UK statute book which implement EU free movement law in the UK, further to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. The purpose of this Act, and the Regulations made under it, is to repeal free movement legislation at the end of the transition period, with various implications for immigration law and practice. There are savings which relate to various aspects, including persons who were exercising EU treaty rights at the end of the transition period and have not yet obtained leave under the EU Settlement Scheme (EUSS) during the six-month grace period that will follow the end of the transition period.

The EUSS was rolled out to most applicants from 30 March 2019 in order to protect the residence rights of EEA citizens, their family members and others who were exercising EU free movement rights in the UK during the transition period. For EEA citizens arriving from 11.01 pm on 31 December 2020, other than Irish citizens and those covered by the EUSS, domestic immigration law will apply in full. See: The EU Settlement Scheme—overview. Further changes are made to the Immigration Rules covering the EUSS from IP completion day, in particular as regards ‘joining family members’ (existing family members of persons in scope of the Scheme who were not resident in the UK before IP completion day). See: LNB News 22/10/2020 80 and News Analysis: Spotlight on joining family members of EEA citizens from 1 January 2021.

The government has made significant revisions to the Immigration Rules in order to create in practice what it is calling a ‘new Points-Based Immigration system’. This includes removing much of the previous Tier terminology of the old Points-Based System. In particular, the main sponsored work route, now called Skilled Worker, has been made significantly less restrictive. The new regime came into force on 1 December 2020, and will apply from IP completion day to all EEA citizens who do not fall within the EUSS (as well as all other non-British and Irish citizens).

To find out more, see: What does IP completion day mean for immigration? and The post-Brexit immigration system: what will it look like?

For further updates from Immigration, see: Immigration monthly highlights—overview.

Information Law

IP completion day has a number of implications for information law and practice. Key areas impacted include:

● data protection, in particular:

—changes to the regulatory regime—with implications for regulation, enforcement, compliance steps, international transfers, contractual terms, policies, notices, documentation and procedures

—some organisations may be required to appoint a representative in the UK and/or EEA

● cybersecurity

● databases

Changes taking effect on IP completion day also have broader implications for the UK technology and data sector, including commercial arrangements and access to EEA workers.

To find out more and for guidance on the impact of IP completion day on ePrivacy, public sector information, confidential information and reputation management, see: What does IP completion day mean for information law?

For further updates from Information Law, see: Information Law weekly highlights—overview.

Insurance & Reinsurance

IP completion day has implications for the regulation of (re)insurance and for insurance and reinsurance disputes.

From a regulatory perspective, the UK has on-shored most direct EU legislation pertaining to the regulation of insurance and amended it, together with existing domestic UK legislation giving effect to EU law, to address particular deficiencies, such as to correct references to the UK being a Member State and to refer to UK supervisory authorities rather than their EU counterparts. Its approach has therefore been to preserve consistency between the UK regulation of insurance and the EU regime insofar as possible.

The UK has also provided for temporary permissions regime and temporary marketing permissions regimes that will come into force on IP completion day and which will allow EEA passporting firms to carry on operating in the UK for a limited period so that those wishing to continue doing so can apply for full UK authorisation.

The position for UK (re)insurance undertakings in the EU following IP completion day varies from Member State to Member State. Only some Member States have taken steps to mitigate the impact. This means that, in the absence of alternative arrangements, UK (re)insurers and intermediaries carrying on business in the EU pursuant to passporting rights will be required to cease doing so. Some (but not all) Member States have, or are in the process of passing legislation or making other provisions to allow such firms to service existing policies and pay claims, but not to accept new business or renew policies.

IP completion day will also bring an end to transfers of insurance business between UK and EU entities under Part VII of the Financial Services and Markets Act 2000 (FSMA 2000). This means that FSMA 2000, Pt VII transfers will only be able to take place between UK companies until an alternative transfer mechanism is implemented.

From a disputes perspective, a central part of the EU regime on jurisdiction is Regulation (EU) 1215/2012 (Brussels I (recast)), which applies in all EU Member States. Unlike much of EU law, Brussels I (recast) will not be retained in UK law. Accordingly, the protections afforded to insureds will fall away on IP completion day. In contrast, in relation to the rules to determine the applicable law for insurance contracts, the special rules for insurance in Article 7 of Regulation (EC) No 593/2008 (Rome I) will be retained in UK law.

To find out more, see: Brexit—Insurance & Reinsurance—overview.

For further updates from Insurance & Reinsurance, see: Insurance & Reinsurance monthly highlights—overview.

IP

IP law is one of the areas of law that is most extensively harmonised across the EU, with a large amount of IP law in the UK originating from the EU in the form of Directives or Regulations. For instance, EU law makes it possible to obtain EU trade mark and designs registrations which offer unitary protection across all EU Member States, as well as allowing for protection of unregistered designs on an equally wide basis.

Considerable efforts have been made to establish consistent regimes of protection and enforcement across the EU and many businesses have taken advantage of the harmonised regime in order to obtain broad and cost-effective protection for their IP rights. As a result, the UK’s decision to leave the EU has, potentially, a significant impact, and there are a number of areas of IP law and practice impacted by IP completion day.

Among other things, various legal and practical considerations arise in the following key areas:

● copyright

● rights in databases

● designs

● trade marks

● geographical indications

● patents

● supplementary protection certificates

● plant variety rights

● domains

● parallel imports

● customs—border detention orders

● IP agreements

To find out more, see: What does IP completion day mean for intellectual property?

For further updates from IP, see: IP weekly highlights—overview.

Life Sciences

The life sciences sector is one of the most highly regulated and globally harmonised industry sectors. A large amount of the UK regulation in the life sciences sector has originated from the EU and is supplemented by guidance issued by the European Commission, the European Medicines Agency (EMA), and the MHRA. Consequently, the impact of Brexit on the life sciences sector is significant, particularly with regard to:

● medicinal products

● medical devices

● clinical trials

The government also introduced the Medicines and Medical Devices Bill to enable the regulatory frameworks for medicines, clinical trials and medical devices to be updated following IP completion day when the ECA 1972 is fully repealed. In addition to the major legislative changes, there are a number of practical changes including the relocation of the EMA from London to Amsterdam and the MHRA’s different role as the standalone regulator for the UK.

To find out more, see: What does IP completion day mean for life sciences? For details of the impact on patents and supplementary protection certificates (SPCs), see: What does IP completion day mean for intellectual property?—Supplementary protection certificates.

For further updates from Life Sciences, see: Life Sciences Weekly highlights—overview.

Local Government

For the most part, the legal framework for the functioning of local government is a purely domestic regime for the purposes of EU(WA)A 2018. As such, the operation of this legal framework is not impacted by IP completion day, although minor technical amendments have been made to legislation to update/reflect changes to EU-derived legislation cited within the relevant legislation.

The substantive law on local government service provision remains the same. In some instances, eligibility for EU citizens to receive services from local authorities will change depending on their immigration status as discussed in the Immigration section above. Local authorities have been requested to assist looked-after children and vulnerable adults in their care who need to make the necessary applications for EUSS to remain eligible for support before the closure of the EUSS in June 2021.

To find out more, see:

● What does IP completion day mean for Local Government?

● What does IP completion day mean for health and social care recruitment?

● Local Government—Brexit tracker

For further updates from Local Government, see: Local Government weekly highlights—overview.

Pensions

While the TCA ensures reciprocal state pension arrangements (including the continued uprating of the UK State Pension paid to pensioners who retire to the EU), it does not touch on occupational pensions.

Notwithstanding this, the impact of IP completion day on UK pension schemes is more financial than legal. Although many areas of UK pensions law are derived from EU law and European court judgments (eg discrimination, TUPE, scheme funding), pensions law is mostly incorporated into UK law and remains largely unchanged post-IP completion day (at least in the short term). This is subject to a few limited exceptions, such as the revocation of the UK’s cross-border pension scheme regime.

From a financial perspective, pension schemes will have had to do a good deal of preparation to mitigate against any adverse effects of IP completion day (eg on the employer covenant and scheme investments), as well as identify any arising opportunities. In particular, despite the persistently uncertain nature of the UK’s future relationship with the EU during the implementation period, well-advised trustees will have considered their hedging position, not just in relation to investments and the ongoing provision of any key services from the EU, but also as regards the strength of the employer, having assessed the effects on both of location and risk/opportunity from Brexit. Trustees will also have had to consider the impact of any buy-ins and buy-outs on overseas members, as well as take steps to ensure that scheme benefits can continue to be paid to such members post-IP completion day (despite some UK banks closing UK-based bank accounts for such members).

To find out more, see Practice Note: Brexit and IP completion day—the implications for pensions.

For further updates from Pensions, see: Pensions weekly highlights—overview.

PI & Clinical Negligence

For personal injury and clinical negligence lawyers, specific cross-border considerations arise in a number of areas, including:

● applicable law

● jurisdiction

● service of documents

● recognition and enforcement of judgments

There are also practical implications in respect of certain types of cross-border claims, eg road traffic accidents, product liability, package holiday claims and rail accidents in Europe. For example, once the EU Motor Insurance Directives no longer apply, the ‘visiting victims’ scheme will cease to apply. It is uncertain to what extent the UK will maintain regulatory alignment in respect of motor insurance following IP completion day. In respect of other types of personal injury cases such as product liability, various legislative changes will take effect from IP completion day to ensure the relevant EU-derived regimes continue to operate effectively with a shift in focus to the UK market.

To find out more, see: What does IP completion day mean for PI & clinical negligence claims?

For further updates from PI & Clinical Negligence, see: PI & Clinical Negligence weekly highlights—overview.

Practice Compliance

IP completion day has a number of implications for law firm compliance.

The switch from the EU GDPR to UK GDPR will necessitate changes to privacy notices and potentially terms of business. See Practice Note: What does IP completion day mean for Practice Compliance?—Updating documentation and Precedent: Privacy policy—law firms and professional services.

If you offer goods or services to, or monitor the behaviour of, individuals in the EEA, it is likely you will need to appoint a European representative for data protection. You will also have to provide details of the representative in your privacy notices. For further guidance, see Practice Note: Appointing a European representative—data protection.

UK organisations can no longer make use of the EU Online Dispute Resolution (ODR) platform. You will need to remove references to the ODR platform in website terms, complaints policies etc.

You will also need to make minor changes to your anti-money-laundering (AML) policies, procedures and other documentation. See Practice Note: What does IP completion day mean for Practice Compliance—Anti-money laundering (AML) and counter-terrorist financing (CTF).

The registered European Lawyer (REL) regime ended on 31 December 2020 (except for Swiss lawyers). You should check that RELs have been successfully passported by the SRA and review and update as appropriate how you describe any RELs on business cards, email signatures, your website and marketing materials. See Practice Note: What does IP completion day mean for Practice Compliance—Registered European Lawyers and Exempt European Lawyers. You should also consider practising rights for UK lawyers in the EU and vice versa—see Practice Note: What does IP completion day mean for Practice Compliance?—Legal services

The post-Brexit sanction regime is intended to deliver substantially the same policy effects as the pre-Brexit regime, but you should not assume they are identical. Some former EU regimes have been merged, separated or renamed. You should check the new legislation to ensure that your activities are still compliant. See Practice Note: What does IP completion day mean for Practice Compliance—International financial sanctions.

To find out more, and for guidance on the impact of IP completion day on data protection, ePrivacy, AML, international financial sanctions, the REL and RFL regimes, legal services, the ODR platform and ADR, and whistleblowing, see: What does IP completion day mean for Practice Compliance?

For further updates from Practice Compliance, see: Practice Compliance weekly highlights—overview.

Private Client

IP completion day will not have a major impact on the majority of Private Client practitioners.

The key piece of EU legislation impacting on Private Client work is the Regulation (EU) No 650/2012 (the EU Succession Regulation) and Brexit does not have any impact on its applicability in the UK as the UK never adopted the Regulation. If anything, Brexit has merely confirmed beyond doubt that the UK is a ‘third state’ for the purposes of the EU Succession Regulation. For further guidance, see News Analysis: EU Succession Regulation and Brexit.

AML regulation is another area in which EU law impacts on Private Client work, with the requirements for beneficial ownership transparency impacting heavily on the trust industry. However, the UK has now transposed 5MLD and so IP completion day does not bring any immediate divergence in this area. This is an area of potential future divergence as the UK has opted out of 6MLD, although it is likely that the UK will still want to lead the way on AML measures. Similarly, data protection (delivered via the EU GDPR) is for now being retained in a similar form in the UK, but will continue to be an area for trustees and personal representatives to watch.

The impact of Brexit on the drafting of trust deeds should be considered. For example, careful consideration may need to be given to a jurisdiction clause and how a judgment would be enforced.

The main impacts of Brexit on Private Client law will become apparent over time. For example, there is concern among Private Client practitioners as to how the concept of the trust will fare in the civil law jurisdictions of mainland Europe once the UK loses its power to shape EU politics. For discussion of this point, see News Analysis: Trusts in Europe and Brexit—what’s next? Additionally, there is a question about whether some tax reliefs which have been extended to EU jurisdictions will remain indefinitely.

For further updates from Private Client, see: Private Client weekly highlights—overview.

Public Law

Brexit is a subject that has dominated public law in recent years. Public law practitioners have been monitoring Brexit developments throughout the withdrawal and transition period, and keeping track of the various transition workstreams, negotiations and domestic preparations. The legal changes associated with IP completion day, including the winding down of the transitional arrangements under the Withdrawal Agreement, and the deferred introduction of retained EU law and associated Brexit legislation, places a general demand on public law expertise which will continue after IP completion day.

The full repeal of the ECA 1972 and the changing status of EU law in UK domestic law triggers a broad range of impacts in the public law space, including implications for constitutional and administrative law, devolution, legislation, the role of the executive, national parliaments and the judiciary, judicial processes, inter-governmental relations and international relations. It also triggers queries around new legal concepts and categories of law such as retained EU law, relevant separation agreement law and common frameworks. The hasty implementation of the TCA and associated agreements adds an additional layer of complexity to the UK’s increasingly complex statute book.

In many cases, navigating the domestic legal framework post-IP completion day will require a solid understanding of core public law subjects, as well as statutory and judicial interpretation. In addition, there are also public law considerations relevant to the various international and institutional arrangements implementing/associated with Brexit, as well as the development, scrutiny and implementation of the government’s broader international policy.

While supporting clients with these broader matters, public law teams will also be dealing with the specific impact of IP completion day within the public sector, as well as bracing for a range of potential reforms on the horizon in domestic law. Key areas of impact and potential reform include:

● human rights

● judicial review

● public procurement

● public sector contracts

● public sector information law

To find out more, see: What does IP completion day mean for the status of EU law in the UK?

For further updates from Public Law, see: Public Law highlights—overview.

Restructuring & Insolvency

During the transition period, key EU regulations applicable in the context of R&I effectively remained in place, but from IP completion day the picture changes significantly. Unless alternative arrangements are made between the UK and the EU in respect of cross-border insolvency proceedings, the main impact for R&I practitioners is the loss of the main operative parts concerning automatic recognition within Regulation (EU) 2015/848 on insolvency proceedings (OJ L 141 of 5.6.2015 p 19) (EU Recast Regulation on Insolvency). The jurisdictional tests are preserved within Retained Regulation (EU) 2015/848 (Retained Recast Regulation on Insolvency), meaning many insolvency/restructuring procedures can still be commenced in England and Wales after IP completion day, but their subsequent recognition in EU Member States will be more complex than before.

Among other things, key areas impacted include:

● the recognition of schemes of arrangement (Part 26) and restructuring plans (Part 26A)

● credit institutions

● insurers

● the Cross-border Insolvency Regulations 2006, SI 2006/1030 (which implement the UNCITRAL Model law in the UK)

● recognition and enforcement of judgments after the loss of Brussels I recast

● financial collateral

● regulation of insolvency practitioners

Broader areas of impact relevant for R&I practitioners include regulatory changes for instance in financial services, data protection and competition law, as well as changes in practice for instance in respect of cross-border mergers.

To find out more, see: What does IP completion day mean for R&I?

For further updates from Restructuring & Insolvency, see: Restructuring & Insolvency weekly highlights—overview.

Risk & Compliance

IP completion day has a number of implications for risk and compliance professionals.

The switch from the EU GDPR to UK GDPR will necessitate changes to privacy notices and potentially terms of business. See Practice Note: What does IP completion day mean for Risk & Compliance?—Updating documentation and Precedent: Privacy policy—general commercial organisation—customer-facing.

If you offer goods or services to, or monitor the behaviour of, individuals in the EEA, it is likely that you will need to appoint a European representative for data protection. You will also have to provide details of the representative in your privacy notices. For further guidance, see Practice Note: Appointing a European representative—data protection.

UK organisations can no longer make use of the ODR platform. You will need to remove references to the ODR platform in website terms, complaints policies etc.

If you are subject to the AML regime, you will also need to make minor changes to your policies, procedures and other documentation. See Practice Note: What does IP completion day mean for Risk & Compliance—Anti-money laundering (AML) and counter-terrorist financing (CTF).

The post-Brexit sanction regime is intended to deliver substantially the same policy effects as the pre-Brexit regime, but you should not assume they are identical. Some former EU regimes have been merged, separated or renamed. You should check the new legislation to ensure that your activities are still compliant. See Practice Note: What does IP completion day mean for Risk & Compliance—International financial sanctions.

To find out more, and for guidance on the impact of IP completion day on data protection, ePrivacy, AML, international financial sanctions, the ODR platform and ADR and whistleblowing, see Practice Note: What does IP completion day mean for Risk & Compliance?

For further updates from Risk & Compliance, see: Risk & Compliance weekly highlights—overview.

Tax

IP completion day has a number of implications for tax. Key areas impacted include:

● VAT—cross border goods and services

● VAT—cross border goods and Northern Ireland

● customs

● mergers, and

● withholding tax

To find out more, see: What does IP completion day mean for tax?

For further updates from Tax, see: Tax weekly highlights—overview.

TMT

The technology, media and telecoms sectors are not impacted equally by the legal changes on IP completion day. Organisations that import or export goods from the EEA or rely on a steady flow of workers from the continent will have felt the effects the most.

All organisations should have reviewed and changed their contractual arrangements where necessary, although the changes required for the majority of general TMT contracts will be minor. For a clause-by-clause guide, see Practice Note: What does IP completion day mean for contract clauses?

Data protection remains a pervasive theme—standard terms of business and privacy notices should have been modified to reflect the switch from the EU GDPR to the UK GDPR. In the absence of an EU data protection adequacy decision for the UK, transfers of personal data from the EEA to UK can now only take place if appropriate safeguards are in place (eg standard contractual clauses or binding corporate rules) or if a specific derogation under EU law applies. This is more likely to be an issue for EU organisations transferring data to the UK rather than the flow of data in the other direction.

In the media sector, UK collecting societies (CMOs) offering multi-territorial licensing of online music rights will continue to be required to represent, on request, the catalogue of other CMOs (UK or EEA) for multi-territorial licensing purposes, provided one of those territories is the UK. However, UK CMOs are not able to mandate EEA CMOs to provide such licences of their repertoire. UK organisations should consider entering into contractual arrangements in order to continue their existing relationships with EEA organisations, if they have not already done so.

UK broadcasters can no longer benefit from the country of origin principle for broadcasts into the EEA. This has had an impact on licensing arrangements which must have been changed to allow them to continue to broadcast into each EEA country they operate in, and their programmes must now comply with local laws and regulations.

The overall impact on telecoms is unlikely to be significant, as telecoms regulation is expected to remain largely aligned with EU rules for the time being.

To find out more, see: What does IP completion day mean for TMT?

For further updates from TMT, see: TMT weekly highlights—overview.

Key content and quick links

For further updates, this section contains quick links to popular trackers and practical guidance content on Brexit:

● Brexit transition hub—accessible in the Brexit toolkit, the Brexit transition hub collates key materials including background information, practical guidance and updates on key Brexit transition priorities, transitional arrangements and the legal changes taking effect after IP completion day. It includes links to specific guidance on the impact of IP completion day in various areas of legal practice

● Brexit toolkit—for ease of reference, this toolkit collates practical guidance on the specific legal and practical implications of Brexit across a range of practice areas. The Brexit toolkit brings all of the core content together for ease of reference and also provides essential background information, trackers and analysis on the process of withdrawing from the EU and negotiating new trade relationships with the EU and third countries

● Brexit legislation tracker—this Practice Note tracks the progress of UK legislation introduced in connection with Brexit. It includes a Brexit SI database collating details of draft and enacted Brexit SIs, as well as draft Brexit SIs laid for sifting. This tracker will continue to track relevant legislation introduced after IP completion day

LexTalk®Brexit: a Lexis®PSL community

Collaborate and network with a community of expert lawyers

LexTalk® is an online community forum which gives Lexis®PSL subscribers the opportunity to post questions, hold conversations, participate in discussions and share best practice. It has been designed to provide a secure place for legal professionals to discuss legal developments, offer and receive peer support, and gain a sense of up to date market practice and advances in real-time. You can access and post questions on all of the dedicated practice area forums, including a dedicated forum for Brexit-related discussion, for users to discuss queries and sense check issues and solutions as they arise day-to-day.

Click here to sign up and meet like-minded community members, create a profile, connect, share, and start participating today! Alternatively, you can access LexTalk® on the key resources tab on your Practice Area home page.

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About the author:
Holly joined LexisNexis in July 2014 and works primarily on the PSL Public Law module. Holly read law at university and qualified as a solicitor in private practice. Before starting her legal career, she gained experience working in local government and spent a year studying politics. Prior to joining LexisNexis, Holly worked in the Global Technology and Sourcing team at BP, supporting a variety of global procurement and compliance projects. Upon joining LexisPSL, she worked in the Commercial and LexisAsk teams before assisting with the development and launch of the PSL Public Law module. Holly looks after a number of core public law subject areas, including Brexit.