Brexit highlights—29 January 2021

Brexit highlights—29 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 29 January 2021.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit Bulletin—Cabinet Office briefing examines support needed for traders

The Cabinet Office has published a release following a briefing with businesses to discuss continuing challenges that traders face and solutions to outstanding issues in light of the end of the Brexit transition period. The Chancellor of the Duchy of Lancaster, Michael Gove, held a meeting of the Brexit Business Taskforce on 28 January 2021 'to reaffirm the government’s commitment to help companies adjust to new trading rules with the EU'.

See: LNB News 29/01/2021 25.

Brexit Bulletin—ESC reports on the Northern Ireland Protocol and EU climate policy

The European Scrutiny Committee (ESC) has published its 34th report on recent draft EU legislation and policy documents deposited in Parliament by the government. The ESC gauges the legal and political importance of each legislative proposal and, where appropriate, inquires further on its implications and/or recommends it for debate. Subjects identified as legally and/or politically important include EU financial support for regions and sectors impacted by the UK’s withdrawal, EU climate policy and how the EU electric vehicle battery Regulation will apply in Northern Ireland under the Northern Ireland Protocol to the Withdrawal Agreement.

See: LNB News 26/01/2021 77.

Brexit Bulletin—EFRA launches urgent inquiry into border delays for meat and fish exports

The Environment, Food and Rural Affairs (EFRA) Committee has launched an urgent inquiry into border delays for meat and fish exports since 1 January 2021. The inquiry will explore how the government can support meat and fish exporters, long and short term action plans for exports to the EU, and scrutinise the government's immediate response to disruptions over the past month. The EFRA Committee is also asking questions relating to UK preparedness for checking food imports from the EU and what lessons have been learnt from the last month. The deadline for submitting evidence is 19 February 2021.

See: LNB News 29/01/2021 45.

Brexit Bulletin—Scottish Government gives update on seafood supply chain

The Office of the Secretary of State for Scotland and the UK government Minister for Scotland, David Duguid, have published an update into the current state of the Scottish seafood industry. This included the announcement of a further £23m in funding to support fishing export business who can prove they have suffered an actual loss in the export of fish and shellfish to the EU. The financial support is specifically aimed at helping SMEs and will be able to be backdated to losses occurring from 1 January 2021.

See: LNB News 25/01/2021 30.

Brexit feature analysis

Divisional Court hands down first judgment on European Union (Withdrawal Agreement) Act 2020 and European Union (Future Relationship) Act 2020

In this analysis, Robert Palmer QC of Monckton Chambers, discusses the first judicial treatment of the European Union (Withdrawal Agreement) Act 2020 and the European Union (Future Relationship) Act 2020 in Polakowski and others v Westminster Magistrates’ Court. The judgment provides a helpful reminder of the domestic approach to be adopted to the determination of rights and obligations formerly conferred or imposed by EU law.

See News Analysis: Divisional Court hands down first judgment on European Union (Withdrawal Agreement) Act 2020 and European Union (Future Relationship) Act 2020.

Brexit legislation updates

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

Lords commence second reading of Financial Services Bill

The House of Lords discussed the key purpose and principles of the Financial Services Bill during its second reading on 28 January 2021. The Bill aims to define the law on financial services and markets, debt respite schemes and Help-to-Save accounts. Line by line examination of the Bill, during Committee Stage, has yet to be scheduled.

See: LNB News 28/01/2021 39.

Defra publishes update on Environmental Bill

The Department for Environment, Food and Rural Affairs (Defra) has discussed the next stages of the Environment Bill following the government’s confirmation that it will be carried over to the next parliamentary session where it will complete Report Stage. Defra expects that the Office for Environmental Protection will begin work soon after Royal Assent and in the meantime the Interim Environmental Governance Secretariat has been established.

See: LNB News 26/01/2021 84.

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

Customs Tariff (Establishment and Suspension of Import Duty) (EU Exit) (Amendment) Regulations 2021

SI 2021/63: This enactment is made in exercise of legislative powers under the Taxation (Cross-border Trade) Act 2018 in in connection with Brexit. This enactment amends two pieces of UK secondary legislation in relation to customs. These Regulations came into force on 22 January 2021.

See: LNB News 25/01/2021 6.

Plant Health (Amendment) (EU Exit) Regulations 2021

SI 2021/79: These Regulations are made in exercise of the powers in EU(W)A 2018, ss 8(1) and 8C, and EU(W)A 2018, Sch 7, para 21 in order to address failures of retained EU law to operate effectively and other deficiencies arising out of, or related to, the Northern Ireland Protocol to the Withdrawal Agreement. These Regulations came into force on 27 January 2021.

See: LNB News 27/01/2021 23.

Framework for the Free Flow of Non-Personal Data (Revocation) (EU Exit) Regulations 2021

SI 2021/83: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in connection with Brexit. This enactment revokes one piece of retained direct EU legislation in relation to framework for the free flow of non-personal data 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. These Regulations come into force on 17 February 2021.

See: LNB News 28/01/2021 57.

Drivers’ Hours and Tachographs (Temporary Exceptions) Regulations 2021

SI 2021/58: Provisions are made to make controlled exceptions of drivers’ hours for heavy goods vehicle drivers for a period of more than 30 days in response to exceptional conditions related to altered UK border controls and checks between Great Britain (GB) and Northern Ireland and exceptional circumstances related to the coronavirus (COVID-19) pandemic in England, Scotland and Wales. These Regulations came into force on 22 January 2021.

See: LNB News 22/01/2021 49.

Social Fund Funeral Expenses Payment (Amendment) Regulations 2021

SI 2021/65: Provisions are made to address deficiencies in retained EU law relating to social fund funeral expenses payments arising from the withdrawal of the UK from the EU under EU(W)A 2018, s 8. The law it addresses has been retained under EU(W)A 2018, s 2. It also amends the Social Fund Maternity and Funeral Expenses (General) Regulations so that a reference to a ‘Member State of the European Union’ also refers to the UK to reflect its position as an independent State. This will maintain the status quo for eligible EEA nationals and their family members organising a funeral in England and Wales. These Regulations come into force on 15 February 2021.

See: LNB News 22/01/2021 26.

Rural Development (Miscellaneous Amendment) (Scotland) Regulations 2021

SSI 2021/33: Provisions are made to make amendments for securing the simplification and improvement of retained EU law governing rural support schemes in Scotland and to correct deficiencies resulting from the EU exit in Scotland. These Regulations come into force on 15 March 2021.

See: LNB News 26/01/2021 2.

Draft Brexit SIs laid for sifting and sifting committee recommendations

Brexit SI Bulletin—latest drafts and sifting committee reports, 29 January 2021

The Commons European Statutory Instruments Committee (ESIC) and the Lords Secondary Legislation Scrutiny Committee (SLSC) are responsible for the sifting process under the 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 29 January 2021.

See News Analysis: Brexit SI Bulletin—latest drafts and sifting committee reports, 29 January 2021.

Brexit SI Bulletin—drafts laid for sifting on 22 January 2021

Under the 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 reported here. Subjects covered include amendments to legislation in the field of electronic communications and broadcasting in order to address the remaining deficiencies arising in the operation of domestic law which transposes the revised Audiovisual Media Services Directive, Directive 2010/13/EU (AVMSD), as a result of the UK’s withdrawal from the EU. The instrument will address the remaining deficiencies that were not addressed in the Audiovisual Media Services (EU Exit) (Amendment) Regulations 2020, SI 2020/1536.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 22 January 2021.

Post-Brexit transition guidance

Public procurement—post-Brexit transition guidance from European Commission

The European Commission has published new guidance for stakeholders. Subjects covered in this guidance include the legal position on public procurement since the end of the transition period and the relevant separation provisions of the Withdrawal Agreement. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 27/01/2021 13.

UK Transition campaign for NI—post-Brexit transition guidance from Cabinet Office

The Cabinet Office has published new guidance for stakeholders. Subjects covered in this guidance include resources for communicating about the new rules relating to Northern Ireland and signposting to available support. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 25/01/2021 13.

Port Health Transition Fund—post-Brexit transition guidance from Defra

The Department for Environment, Food and Rural Affairs (Defra) has published new guidance for local authorities in England. Subjects covered in this guidance include the purpose of the grant, how allocation of it was determined and a table containing the amount received by each local authority. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 27/01/2021 8.

Healthcare for UK nationals living abroad—post-Brexit transition guidance from the FCDO

The Foreign, Commonwealth and Development Office (FCDO) has published updated guidance for UK nationals living in Germany, Portugal or Austria. Subjects covered in this guidance include how anyone living, studying or working in these countries can access state healthcare and whether they will have to pay money for it. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 25/01/2021 104.

Agent Update: January 2021—post-Brexit transition guidance from HMRC

Subjects covered in this guidance include new rules for trading with Europe, for business travellers and on social security coordination, as well as postponed VAT accounting. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/01/2021 47.

Employer Bulletin UK Transition Special Edition—Brexit transition guidance from HMRC

Subjects covered in this guidance include payroll topics. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 25/01/2021 47.

Excise Notices—post-Brexit transition guidance from HMRC

Subjects covered in this guidance include new and amended excise notices resulting from the end of the Brexit transition period. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may continue to be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 27/01/2021 71 and LNB News 29/01/2021 41.

Fuels—post-Brexit transition guidance from HMRC

Subjects covered in this guidance include updates to reflect the end of the Brexit transition period for the type of fuel that can be legally used in different types of vehicles, relief that can be obtained for mineral oil put to certain uses, the UK Duty Stamps Scheme and the requirements and obligations for warehouse keepers of motor and heating fuels in the UK. While the Brexit transition/implementation period ended at 11pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 27/01/2021 20.

How to claim preferential rates of duty—post-Brexit transition guidance from HMRC

Subjects covered in this guidance include information about the need to identify goods that are originating and non-originating when claiming preferential rates of duty on goods covered in the EU-UK Trade and Cooperation Agreement. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 25/01/2021 71.

Repayment or remission of import duties—post-Brexit transition guidance from HMRC

Subjects covered in this guidance include information on applying for repayment or remission of import duties after the transition period from the 1 January 2021. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 22/01/2021 62.

Handling products in DCP and MRP—post-Brexit transition guidance from MHRA

The Medicines and Healthcare Products Regulatory Agency (MHRA) has published updated guidance for applicants in marketing authorisations (MAs). Subjects covered in this guidance include how to handle Decentralised procedure (DCP) and Mutual Recognition procedures (MRP) which are approved or pending. In this update, MHRA clarifies that UK national MA applications can be submitted irrespective of applications for the same product in EU and clarification of options for ongoing procedures that were not completed by 31 December 2020. While the Brexit transition/implementation period ended at 11pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 22/01/2021 17.

ECMT international road haulage permits—post-Brexit transition guidance from Traffic Commissioners for Great Britain

The Traffic Commissioners for Great Britain have published updated guidance for road hauliers that may require permits to travel through or to European Conference of Ministers of Transport (ECMT) Member States. Subjects covered in this guidance include when a permit is required, how to apply for one and the rules for using them. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 22/01/2021 72.

Beyond Brexit

Beyond Brexit—Scottish Government briefing examines international trade

The Scottish Government has published a briefing entitled 'Scotland's Vision for Trade' on international trade post Brexit. Trade Minister, Ivan McKee, has announced that the Vision for Trade identifies 11 key global trade challenges and is set to include principles of growth, wellbeing, sustainability, net zero and good governance.

See: LNB News 27/01/2021 30.

DIT publishes report on easier transatlantic trade with US for small businesses

The DIT has published a report by leading US-UK trade association BritishAmerican Business, which highlights opportunities and challenges of trade with the US for small businesses. The report reveals three priority areas in which the government can work with small and medium enterprises (SMEs) to promote greater transatlantic trade and investment as part of its ongoing work to support SMEs. These are lower barriers to investment and trade by aligning regulations and standards, resolving trade disputes and allowing easier business travel across the Atlantic and boosting on-the-ground, practical support to businesses.

See: LNB News 26/01/2021 91.

Editor's picks—the practice area/sector view

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

Corporate Crime

The EAW is dead—long live the UK-EU Surrender Agreement

Rosemary Davidson, barrister at 6 KBW College Hill, discusses the law enforcement and criminal justice co-operation aspects of the EU–UK Trade and Cooperation Agreement (TCA), in particular Part 3, and the new post-Brexit extradition arrangements between the UK and EU.

See News Analysis: The EAW is dead—long live the UK-EU Surrender Agreement.

Catching criminals could get harder post-Brexit

As the EU-UK Trade and Cooperation Agreement (TCA) weakened the UK’s systems for data access and intelligence-sharing with the EU, cross-border law enforcement and judicial co-operation in criminal matters may become more difficult and expensive, says Jonathan Pickworth at White & Case.

See News Analysis: Catching criminals could get harder post-Brexit.

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

Environment

UK vessels landing fish at EU ports—new post-Brexit transition guidance from Defra

The Department for Environment, Food and Rural Affairs (Defra) has published new guidance for UK vessels landing fish in an EU designated port. The guidance includes the relevant declaration form and time limits. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 21/01/2021 19.

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

Financial Services

UK/Swiss talks continue on a mutual recognition agreement

HM Treasury has announced that plans to move forward to the next stage of talks between the UK and Switzerland on an agreement on financial services were agreed between the chancellor, Rishi Sunak, and federal councillor Ueli Maurer on 27 January 2021.

See: LNB News 28/01/2021 18.

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

Immigration

JCWI publishes report calling for EUSS deadline to be lifted

The Joint Council for the Welfare of Immigrants (JCWI) has published a report detailing the precarious situation in which European Economic Area plus (EEA+) people in the UK have found themselves as a result of the EU Settlement Scheme (EUSS). The current deadline to apply to the EUSS is 30 June 2021 and anyone that fails to do so by then will lose their legal status. The JCWI is calling for the deadline for the EUSS to be lifted or else risk an unknown proportion of the estimated 4 million EEA+ residents of the UK losing their legal status and consequently their jobs.

See: LNB News 25/01/2021 84.

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

Information Law

EU-UK data adequacy decision expected in ‘coming weeks’, with focus on government access

The European Commission will formally send its draft decision on the UK’s data-protection adequacy to the European Data Protection Board ‘in the coming weeks’, a senior EU official said on 27 January 2021. Bruno Gencarelli said that one of the contentious areas is the ‘safeguards applying to government access for national security and law enforcement’.

See News Analysis: EU-UK data adequacy decision expected in ‘coming weeks’, with focus on government access.

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

Life Sciences

Commission Notice on application of the Union's pharmaceutical acquis in markets published in Official Journal

Commission Notice on application of the Union’s pharmaceutical acquis in markets historically dependent on medicines supply from or through Great Britain after the end of the transition period has been published in the Official Journal.

See: LNB News 27/01/2021 24.

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

Local Government

Healthcare for UK nationals living abroad—post-Brexit transition guidance from FCDO

The Foreign, Commonwealth and Development Office (FCDO) has published updated guidance for UK nationals living in Germany, Portugal or Austria. Subjects covered in this guidance include how anyone living, studying or working in these countries can access state healthcare and whether they will have to pay money for it. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 25/01/2021 104.

Updated guidance on healthcare for overseas visitors—post-Brexit transition guidance from Public Health England

Public Health England has updated its guidance for healthcare practitioners. Subjects covered in this guidance include handling the health needs of migrants in the UK, a summary of how advice has changed since the end of the transition period and what to do in relation to charging overseas visitors for coronavirus (COVID-19) tests and vaccinations. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 22/01/2021 13.

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

Personal Injury

Brexit—product liability, package holiday personal injury claims and rail accidents in the EU

Rob Hunter, an experienced international personal injury barrister at Devereux Chambers, discusses three statutory instruments made under section 8(1) of the European Union (Withdrawal) Act 2018 (EU(W)A 2018), focusing on consumer protection, package travel and railway accidents from the perspective of a personal injury lawyer. The purpose of each SI, the changes it makes and its practical implications are considered. More broadly, Hunter asks: taking these three examples, what will be the impact of Brexit Regulations in the personal injury field?

See News Analysis: Brexit—product liability, package holiday personal injury claims and rail accidents in the EU.

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

Private Client

Private Client—Brexit considerations

On 24 December 2020, seven days before the end of the Brexit transition period at 11pm on 31 December 2020 (IP completion day), it was announced by Prime Minister, Boris Johnson, the UK and EU had negotiated a deal. Angharad Lynn, senior associate at Veale Wasbrough Vizards LLP, considers the impact of the EU-UK Trade and Cooperation Agreement (TCA) upon private client law in the UK.

See News Analysis: Private Client—Brexit considerations.

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

Public Law

Public procurement—post-Brexit transition guidance from European Commission

The European Commission has published new guidance for stakeholders. Subjects covered in this guidance include the legal position on public procurement since the end of the transition period and the relevant separation provisions of the Withdrawal Agreement. While the Brexit transition/implementation period ended at 11 pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes. Further guidance may be issued post-IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 27/01/2021 13.

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

Latest Q&A

● What are the changes to the Pre-Contract Credit Information (Standard European Consumer Credit Information) of a Hire Purchase Agreement as a result of Brexit?

LexTalk®Brexit: a Lexis®PSL community

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Useful information

The following recent journal articles are available subject to subscription:

● Litigation trends & predictions: In a special NLJ report, Grania Langdon-Down talks to Mrs Justice Cockerill, head of the Commercial Court, and litigators about the challenges of 2020 and what 2021 will bring in relation to work-flow, procedural reform, diversity and well-being, noting key details left unresolved in the Trade and Cooperation Agreement (TCA) reached between the UK and EU. See New Law Journal 171 NLJ 7917, p17

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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.