Brexit highlights—20 March 2020

Brexit highlights—20 March 2020

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 20 March 2020.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Coronavirus (COVID-19)—Government committed to IP completion day amid COVID-19 pandemic

The government has announced that the IP completion day will stay at 31 Dec 2020 amid the coronavirus (COVID-19) pandemic. In light of the latest coronavirus guidance, negotiating work strands will not convene as previously scheduled. However, the UK government and European Commission remain in regular contact to consider flexible, alternative ways of continuing the discussions. Both the EU chief negotiator, Michel Barnier, and UK chief negotiator, David Frost, are in isolation due to COVID-19 and are reported to have not met since the first round of talks.

See: LNB News 18/03/2020 49.

Brexit Bulletin—examining the EU’s draft legal text for the future UK-EU relationship

On 18 March 2020, the European Commission’s UK Task Force (UKTF) published its proposed draft legal text for an ‘ambitious and comprehensive’ future partnership agreement between the EU and the UK. The draft ‘translates into a legal text the negotiating directives approved by Member States in the General Affairs Council on 25 February 2020, in line with the Political Declaration agreed between the EU and the UK in October 2019’. Face-to-face talks remain suspended due to COVID-19. Commenting on the draft, Richard Eccles, partner at Bird & Bird, warns that the UK and EU negotiators are far apart with very little time to find a compromise.

See: LNB News 19/03/2020 39.

European Scrutiny Committee issues first report on the EU’s mandate for the future UK-EU relationship

On 17 March 2020, the Commons European Scrutiny Committee (ESC) published its first report of the 2019–21 Parliament, focusing on the EU’s mandate for negotiating a new partnership with the UK. The Committee considers that the Council decision approving the Commission’s mandate and the opening of negotiations raises matters of vital national interest, but before considering whether to bring a motion for debate on the subject, the ESC has invited comment from other parliamentary committees on the matter, pending a further report.

See: LNB News 18/03/2020 91 and LNB News 17/03/2020 8.

Committee letter suggests that more could be done to ensure sustainable fishing

The EU Energy and Environment Sub-Committee has written a letter to the Secretary of State, George Eustice MP, summarising its key findings from an inquiry into the access to UK fisheries post-Brexit. In its letter, the sub-committee provides its key findings, suggesting that the government could do more to ensure sustainable fishing in relation to the UK-EU fishing agreement.

See: LNB News 17/03/2020 10.

Briefing on proposed UK-EU commitments regarding ‘level playing fields’

The House of Commons Library has published a briefing setting out the UK and EU’s proposed commitments on ‘level playing fields’ in competition law, State aid, labour and environmental standards and climate change to enable them to agree to a deal. The Political Declaration, agreed to alongside the Withdrawal Agreement, includes a commitment to a ‘level playing field’, and the UK government has already confirmed that it will maintain the highest standards in the given areas. However, it would not go further its commitment to the EU than countries like Canada or Japan (notwithstanding their relative distance from the EU). Certain areas, such as taxation are not expected to be controversial, while a compromise on State aid may be harder to come by.

See: LNB News 18/03/2020 78.

Brexit financial settlement estimated to cost £33bn

The House of Commons Library has published details of the UK and EU’s Brexit financial settlement. The settlement is part of the Withdrawal Agreement, which the Office for Budget Responsibility estimates would cost the UK £33bn.

See: LNB News 17/03/2020 38.

Brexit legislation updates

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

Brexit Bulletin—government cannot yet confirm the number of Brexit SIs anticipated during transition period

In correspondence published by the Commons European Statutory Instruments Committee, Leader of the House, Jacob Rees-Mogg, was asked to provide an initial estimate of the expected flow and volume of Brexit SIs to be introduced under the European Union (Withdrawal) Act 2018 (EU(W)A 2018) in 2020. In response, Rees-Mogg confirmed that ministers are ‘refining’ their requirements for secondary legislation in order to provide a clear view ‘as early as possible’ on the requirements for a functioning statute book at the end of the transition period under the Withdrawal Agreement, but the volume and flow of SIs required will depend on progress in the future relationship negotiations.

See: LNB News 19/03/2020 77.

New statement of changes in Immigration Rules—HC 120

The government has issued a Statement of Changes in Immigration Rules HC 120, together with an Explanatory Memorandum (EM). The changes will come into force on 6 April 2020, subject to certain transitional provisions.

See: LNB News 12/03/2020 82.

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 (Withdrawal Agreement) Act 2020 (Commencement No 2) Regulations 2020

SI 2020/317: This enactment provides that certain provisions of the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020), which is the key piece of domestic legislation giving effect to the Agreement on the withdrawal of the UK of Great Britain and Northern Ireland from the EU and the European Atomic Energy Community (Withdrawal Agreement) in UK law, come into force in the UK on 19 and 23 March 2020.

See: LNB News 19/03/2020 38.

Railways (Interoperability) (Miscellaneous Amendments and Revocations) (EU Exit) Regulations 2020

SI 2020/318: This enactment is made in exercise of legislative powers under the Transport Act 2000 and the EU(W)A 2018 in preparation for IP completion day. This enactment amends five pieces of UK legislation and four pieces of retained EU legislation, and revokes 34 pieces of retained EU legislation, in relation to the railways, 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 comes into force partly on 10 April 2020, and immediately before IP completion day and fully on IP completion day.

See: LNB News 20/03/2020 35.

Draft Brexit SIs laid for sifting and sifting committee recommendations

Brexit SI Bulletin—drafts laid for sifting on 16 March 2020

Under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), before certain statutory instruments are formally laid in Parliament, they have to go through a preliminary sifting process to determine the appropriate parliamentary procedure. The latest draft Brexit SIs laid for sifting are outlined here. Subjects covered include regulation of public passenger transport services by rail and by road.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 16 March 2020.

Brexit SI Bulletin—drafts laid for sifting on 13 March 2020

Subjects covered include regulation of carriage of dangerous goods by road and rail, and in particular, inspection of transportable pressure equipment.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 13 March 2020.

Editor's picks—the practice area/sector view

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

Banking and Finance

Phase 1 firms reporting obligations under the Securities Financing Transactions Regulation

The Financial Conduct Authority has produced an overview of the Securities Financing Transactions Regulation (SFTR). The SFTR applies directly to the UK for the duration of the transition period and trade repositories will remain regulated by the European Securities and Markets Association. At the end of the transition period, the regulations will be onshored by the European Union (Withdrawal) Act 2018. As of 11 April 2020, reporting obligations will be applicable to phase 1 firms.

See: LNB News 12/03/2020 11.

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

Financial Services

Valdis Dombrovskis outlines equivalence assessment processes for EU and UK

The executive vice-president of the European Commission, Valdis Dombrovskis, wrote to the UK’s chancellor of the exchequer, Rishi Sunak, on the topic of equivalence assessments. Dombrovskis says both the EU and the UK should start these assessments as soon as possible, endeavouring to conclude them before the end of June 2020, but he also emphasises that, as agreed in the Political Declaration, this means proceeding with the assessments as opposed to taking equivalence decisions by that date.

See: LNB News 17/03/2020 32.

FOS makes Exiting the European Union: Deferral of Commencement Instrument 2020

The Financial Ombudsman Service Limited (FOS) made the Exiting the European Union: Deferral of Commencement Instrument 2020. It has made the instrument in the exercise of paragraph 8 (Information, advice and guidance) and related provisions of Schedule 17 to the Financial Services and Markets Act 2000 (FSMA 2000).

See: LNB News 16/03/2020 74.

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

Information Law

UK Government publishes pack to assist Commission in adequacy finding

The Prime Minister confirmed, in a statement on 3 February 2020, that it is the UK’s intention to secure adequacy decisions from the European Commission post-Brexit to enable personal data to continue to flow freely from the EU to the UK and Gibraltar after the transition period. The Department for Digital, Culture, Media and Sport (DCMS) has published a pack of explanatory material to 'provide the information necessary for the Commission to plan and conduct its assessment in good time'. DCMS describe the pack as providing an overview of the UK’s 'comprehensive legal framework underpinning high data protection standards'.

See: LNB News 13/03/2020 70.

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

Local Government

Brexit Bulletin—government updates transition guidance on access to healthcare to include coronavirus (COVID-19) travel advice

The Department of Health and Social Care has updated its guidance for UK nationals visiting the EU, EEA and Switzerland, to include the latest health advice for UK travellers following the outbreak of COVID-19.

See: LNB News 13/03/2020 65.

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

Public Law

B​​rexit Bulletin—sixth report on the European Union (Withdrawal) Act and common legislative frameworks

The Cabinet Office has published its sixth report on the development of common frameworks under the EU(W)A 2018. The report covers progress by the government and devolved administrations in the development of common legislative frameworks in areas of devolved competence previously subject to the supremacy of EU law. The report covers the period from 26 September 2019 to 25 December 2019. The common frameworks are intended to ensure harmonisation within the UK market in key devolved areas.

See: LNB News 19/03/2020 72.

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

Brexit content and quick links

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

● Brexit Bulletin—key updates, research tips and resources—this Brexit Bulletin provides a quick reference Brexit research aid and updating tool. It answers key questions on Brexit and includes helpful Brexit updates, research tips and resources

● 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

● 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

Latest Q&A

● Will the Investments Firms Regulation and Directive form part of UK law after Brexit?

LexTalk®Brexit: a Lexis®PSL community

Collaborate and network with a Lexis®PSL 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.

Useful information

Here is a sample of recent Brexit journal articles available subject to subscription:

● Budget report—A to Z guide to the key tax measures: In this article, Paul Stainforth traces through a tax lens the implications of the Budget 2020, delivered amidst the continuing political uncertainty surrounding Brexit and the looming effect of COVID-19 on the economy. See: Tax Journal, Issue 1479, 18

● News—Covering the latest developments in tax: In this article, Paul Stainforth reports on the continuing post-Brexit availability of VAT zero rating for dispersing practitioners under the Value Added Tax (Drugs and Medicines) Order, SI 2020/250. See: Tax Journal, Issue 1479, 2

● Briefing—Tax and the City review for March: In this article, Mike Lane sheds light on a 4 year old flaw in the bank surcharge rules, unearthed amidst Brexit contingency planning and soon to be rectified by the Finance Bill 2020, published on 19 March 2020. See: Tax Journal, Issue 1480, 18

● News: City firms berate AML levy 'burden': In this article, Jemma Slingo gauges echoing sentiment amongst solicitors over the ‘burden’ presented by the AML levy, having the potential to damage the competitiveness of UK firms 'at a time when the legal sector is facing increased competition from EU-based legal sectors following Brexit'. See: Law Society Gazette (2020) LS Gaz, 16 Mar, 7

● One minute with... Valentina Sloane QC, Monckton Chambers: In this article, Valentina Sloane, following a recent surge in cases, estimates that litigation on customs duties and anti-litigation duties will likely be ‘a prominent feature of the post-Brexit legal landscape’. See: Tax Journal, Issue 1480, 21 (1)

Please feel free to contact the Lexis®PSL team with your comments, queries or suggestions: Contact us.

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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.