Brexit highlights—28 February 2020

Brexit highlights—28 February 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 28 February 2020.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit Bulletin—key updates, research tips and resources (February 2020)

We have published an update to our Brexit Bulletin—key updates, research tips and resources. The latest edition includes with further Brexit Q&As answering your recent questions on the latest Brexit developments. Subjects covered in this edition include Brexit SIs which are no longer in force and key milestones in the implementation period and future relationship negotiations.

See: Brexit Bulletin—key updates, research tips and resources.

Brexit Bulletin—UK priorities for its future relationship with the EU

On 27 February 2020, the UK government published a position paper outlining its priorities and approach for negotiations on its future relationship with the EU. The UK is looking to finalise a Comprehensive Free Trade Agreement with zero tariffs and quotas on goods, based on existing EU models such as Canada, Japan and South Korea. This would be supplemented by a range of other international agreements eg on fisheries, nuclear cooperation, law enforcement and judicial cooperation. This would be supported by various technical and other processes for instance on data protection adequacy, financial services equivalence and civil judicial cooperation. Central to the UK position is the rejection of the EU’s proposals on level playing field, centralised governance and enforced dynamic alignment with EU rules, regulations and institutions, including the Court of Justice. With talks due to start from 2 March 2020, Richard Eccles, Partner at Bird & Bird, and Professor Adam Cygan of the University of Leicester consider some of the potential flashpoints ahead.

See: LNB News 27/02/2020 80.

Brexit Bulletin—EU27 approve negotiating mandate for future relationship

On 25 February 2020, the Council of the EU convened to review the European Commission’s recommendation to open talks with the UK on the future EU-UK relationship. The Council adopted a decision authorising the opening of negotiations and nominating the Commission as negotiator for the EU, led by chief negotiator Michel Barnier. The Council also adopted negotiating directives setting out the Commission’s mandate for the talks, sticking firmly to previous EU position statements and targeting a ‘wide-ranging and balanced economic partnership with the UK’, underpinned by ‘robust commitments to ensure a level playing field for open and fair competition’. The UK government is set to outline its position on Thursday, 27 February 2020, before talks commence in March 2020.

See: LNB News 25/02/2020 91 and LNB News 27/02/2020 79.

EU governments tighten UK's ‘level playing field’ obligations in revised negotiating mandate

The revised text of the EU’s Brexit negotiating mandate for the future relationship, approved by national ministers on 25 February 2020, proposes tougher obligations on the UK to ensure a ‘level playing field’ in return for trade without tariffs and quotas. The redrafted mandate differs from the European Commission’s original proposal by stipulating that the UK should adhere to the bloc’s rules in areas such as State aid and the environment ‘over time’, as well as taking a broader stance on which EU rules the UK should continue to follow.

See News Analysis: EU governments tighten UK's ‘level playing field’ obligations in revised negotiating mandate.

The UK’s plans for a points-based immigration system from 1 January 2021

This analysis looks at the Home Office’s policy statement issued on 19 February 2020, which sets out its main plans on the post-Brexit immigration system. The policy outlines the key features which will apply to both EU and non-EU citizens from 1 January 2021 (other than those EU citizens and family members who were resident in the UK before that date and therefore will fall within the EU Settlement Scheme).

See News Analysis: The UK’s plans for a ‘points-based system’ from 1 January 2021.

Impact of Brexit ‘observed carefully’ in WTO Trade Policy Review of the EU

The World Trade Organization (WTO) has concluded its fourteenth annual Trade Policy Review (TPR) of the EU—the first since the UK’s withdrawal from the EU. In the concluding remarks, the TPR Body Chair, Ambassador Manuel AJ Teehankee (Philippines), touched upon the EU being seen as a strong supporter of the rules-based multilateral trading system by its members, as well as its continued orientation toward the open market. WTO members also noted the advantageous trade partnerships with the EU to liberalise trade, including Free Trade Agreements and Economic Partnership Agreements.

See: LNB News 21/02/2020 30.

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.

Draft Brexit SIs laid for sifting and sifting committee recommendations

Brexit SI Bulletin—latest drafts and sifting committee reports, 28 February 2020

The Commons European Statutory Instruments Committee (ESIC) and the Lords Secondary Legislation Scrutiny Committee (SLSC) are responsible for the sifting process under the European Union (Withdrawal) Act 2018 (EU(W)A 2018). These committees scrutinise proposed negative Brexit SIs and make recommendations on the appropriate parliamentary procedure before the instruments are laid in Parliament. This bulletin outlines the latest updates and recommendations, collated on 28 February 2020.

See News Analysis: Brexit SI Bulletin—latest drafts and sifting committee reports, 28 February 2020.

Brexit SI Bulletin—drafts laid for sifting on 27 February 2020

The latest draft Brexit SIs laid for sifting are outlined here. Subjects covered include regulation of railways, rail projects, rolling stock and infrastructure.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 27 February 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 & Finance

HM Treasury publishes draft SI on post-Brexit supervision of third-country CCPs

The Treasury published a draft statutory instrument: the Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020. The draft SI makes amendments to retained EU law relating to the supervision framework for third-country central counterparties (CCPs), to be laid in the Spring under the procedures in the EU(W)A 2018, as amended by the EU(WA)A 2020.

See: LNB News 24/02/2020 73.

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

Financial Services

EU to decide ‘unilaterally’ on UK access to finance sector

The EU on 25 February 2020 said that it will decide ‘on a unilateral basis’ on equivalent regulation allowing UK financial companies access to its markets, as it set out its negotiating mandate to carve out a future relationship with Britain after the end of the Brexit transition on 31 December 2020.

See News Analysis: EU to decide ‘unilaterally’ on UK access to finance sector.

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

Immigration

Home Office accepted a majority of ICIBI’s recommendations about the EU Settlement Scheme

The Independent Chief Inspector of Borders and Immigration (ICIBI) has published its second report on the EU Settlement Scheme covering the period of April–August 2019. Nine recommendations are included in the report concerning notably the ancillary costs of making an application, foreign language support for applicants with limited English, and staff training. The Home Office has accepted four recommendations, partially accepted four recommendations, and not accepted one recommendation. The one rejected concerned the absorption of costs by the Home Office of the use of an ID checking location. The Home Office has explained that the charge for the service is determined by local authority.

See: LNB News 27/02/2020 81.

Report outlines impact of new immigration system on small businesses

The Federation of Small Businesses (FSB) has produced a report outlining what a new points-based immigration system will mean for small businesses in the UK. Using quantitative and qualitative data collected from FSB members, the FSB has published its key findings in relation to small businesses and non-UK workers, small businesses that employ skilled staff, Tier 2 salary thresholds and the impact of a salary threshold and skill threshold on small businesses. The FSB has also discussed a temporary route and low-skilled migration, sponsorship costs for small businesses and self-employment. Additionally, the FSB has outlined several recommendations in relation to its finding and has set out a series of proposals to be introduced over a period of time to enable small businesses to manage the changes that will occur as a consequence of the governments’ new immigration points-based system.

See: LNB News 24/02/2020 53.

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

Information Law

EDPS Opinion on the future EU-UK partnership

The European Data Protection Supervisor (EDPS) has issued its opinion on the opening of negotiations for a new partnership between the EU and the UK. The EDPS recommends that the envisaged partnership ensures security and economic partnerships are underpinned by adequate protection of personal data, defines priorities for institutional co-operation and assesses onward transfers of personal data in the light of the Opinion 1/15 of the Court of Justice of the European Union.

See: LNB News 25/02/2020 77.

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

Insurance & Reinsurance

Comment—Insurers dare to hope for ‘risk margin’ rule changes as Brexit opens door

MLex: British insurers have been patiently waiting to see the back of a much-disliked EU-wide rule as one of the advantages of Brexit. But the debate about how close the UK rulebook should remain to the EU's may see that longstanding hope remain elusive.

See News Analysis: Comment—Insurers dare to hope for ‘risk margin’ rule changes as Brexit opens door.

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

Local Government

Vulnerable groups at risk of losing the right to stay in the UK as a result of Brexit

The EU Justice Sub-Committee has voiced its concern that vulnerable groups may lose the right to stay in the UK at the end of th​​e Brexit transition period due to various obstacles. The Committee wrote to Parliamentary Under Secretary of State for Immigration Kevin Foster MP in order to flag said obstacles, citing the lack of clarity surrounding applications made on behalf of children in care, the lack of certainty affecting those who will not have applied by the 30 June 2021 deadline, and the lack of information on the necessary documentation required when applying through the EU Settlement Scheme. Other questions have been raised on the need for access to professional and legal assistance and support with complex applications, and the disadvantages faced by those who have resided in the UK for over five years but are unable to provide clear evidence. This group can only be granted ‘pre-settled status’, denying them access to benefits and services such as domestic violence refuges and housing benefit.

See: LNB News 26/02/2020 12.

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

Public Law

Briefing paper considers the constitutional implications of Withdrawal Agreement

The House of Commons Library has released a briefing paper on the constitutional and legal implications of the Withdrawal Agreement legislation for domestic law—namely the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020. The briefing paper focuses especially on the relationship between these two Acts. It also looks at constitutional issues that have arisen as a result of the process of legislating for Brexit, including devolution, the role of Parliament in approving treaty changes and the ability of Parliament to scrutinise and constrain the Executive, including government ministers and agencies.

See: LNB News 21/02/2020 77.

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:

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

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.

New Brexit Q&As

● What will the impact of the UK’s exit from the EU be on the export controls applicable to ‘dual-use’ software?

Useful information

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

● Up Front: Ministers mull £70m saving on immigration rules: In this article, Monidipa Fouzder reports on the post-Brexit points-based immigration system as it ‘ring[s] some alarm bells’ amongst immigration practitioners. See: Law Society Gazette: (2020) LS Gaz, 24 Feb, 3 (2)

● In Practice: Employment Law: Brexit: A clause for concern in the workplace: In this article, Paul McFarlane draws attention to concerns, shared by the Employment Lawyers Association (ELA), over the uncertain impact of the European Union (Withdrawal Agreement) Act 2020, s 26 on EU-derived rights and legislation the UK plans to preserve in UK law after Brexit. See: Law Society Gazette: (2020) LS Gaz, 24 Feb, 26

● A quick fix: In this article, Angela Lang-Horgan puts the 2018 EU VAT rules under the spotlight, stressing their impact on cross-border transactions and call of stocks, even after Brexit. See: Taxation, 27 February 2020, 12

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.