Brexit highlights—6 March 2020

Brexit highlights—6 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 6 March 2020.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit Bulletin—round 1 of future relationship talks confirm ‘very serious’ differences

Following the first round of negotiations on the future UK-EU relationship, EU Chief Negotiator Michel Barnier gave an address. The first round of talks provided an opportunity to ‘exchange, compare and clarify’ the UK and EUs’ respective positions, and identify ‘points of convergence and divergence’. In his remarks, Mr Barnier spoke of constructive talks, but warned of ‘very serious differences’ between the UK and the EU on key issues, which he described as unsurprising, but very difficult. He also warned stakeholders on both sides to prepare for unavoidable 'future points of friction' which will arise at the end of transition whether there is a deal or not.

See: LNB News 05/03/2020 80.

Brexit Bulletin—terms of reference on the UK-EU future relationship negotiations

The joint terms of reference for the future relationship negotiations between the EU and the UK were published on 28 February 2020, setting out an initial timetable of negotiating rounds, starting on 2 March 2020.

See: LNB News 03/03/2020 6.

Brexit Bulletin—Council decision on opening negotiations with UK published in Official Journal

The Council decision on opening EU negotiations with the UK on the future relationship has been published in the Official Journal of the European Union (OJEU).

See: LNB News 27/02/2020 79.

Brexit Bulletin—Commons briefing examines the process and issues in negotiating the future UK-EU relationship

With negotiations on the future UK-EU relationship under way, the House of Commons Library has published a briefing paper outlining the procedure for negotiations, key objectives of both parties, and possible contentious issues. Among other things, the briefing identifies level playing field commitments, fisheries and human rights as key flashpoints in the debate. Assuming there is no extension to the transition period, an agreement must be ratified by the end of 2020. The European Commission’s timetable envisages an initial agreement by October 2020 to allow for ratification and implementation of the deal by IP completion day (except for fisheries which the EU wants agreement on by June 2020). The UK is looking for broad agreement across the board by June 2020.

See: LNB News 03/03/2020 37.

Comment—UK-EU talks could flounder not on what deal to agree, but on how many

The UK-EU future relationship after Brexit could hinge on an arcane dispute over the legal form of any eventual agreement. Disagreement over the number of deals to be thrashed out could scupper talks almost as soon as they have begun.

See News Analysis: Comment—UK-EU talks could flounder not on what deal to agree, but on how many.

Comment—UK business could fall victim to Brexit standards face-off

UK companies should prepare for a rocky path to getting approval to trade with the EU, after the government set out a negotiating approach to regulatory alignment that won’t be acceptable to Brussels. The two sides are talking across each other, with the UK pointing to its current high standards and the EU insisting on a legal framework to protect its single market in perpetuity.

See News Analysis: Comment—UK business could fall victim to Brexit standards face-off.

Ministerial leads for the Withdrawal Agreement Joint Committee confirmed

The Prime Minister, Boris Johnson, has confirmed the ministerial leads for the Withdrawal Agreement Joint Committee. The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, Rt Hon Michael Gove MP, has been confirmed as the co-chair of the Withdrawal Agreement Joint Committee and Paymaster General Rt Hon Penny Mordaunt MP has been confirmed as the alternate co-chair. The Joint Committee will oversee the implementation of the Withdrawal Agreement.

See: LNB News 02/03/2020 26.

Stakeholders express concerns regarding proposed 'points-based' immigration system

The House of Commons Library has published a briefing paper with the responses from stakeholders to the government’s policy statement on a 'new points-based system' for immigration. The abolition of the resident labour market test, the decrease of the skills and salary thresholds and the suspension of the cap on the number of work visas available are proposals that have all been welcomed. However, concerns have been expressed regarding other areas, such as the absence of a transitional visa category to help employers adapt to Brexit, the impact on sectors with multiple low-paid or low-skilled jobs and the continuation of a national salary threshold without regional variation. Concerns were also expressed regarding the costs and administrative burdens surrounding sponsoring work visas and the ‘ambitious timetable’ for the system’s implementation.

See: LNB News 04/03/2020 41.

Committee publishes twenty-second report scrutinising Brexit-related international agreements

The House of Lords European Union Committee (EUC) has published its twenty-second report scrutinising Brexit-related treaties and international agreements. The EUC has scrutinised the ‘rollover’, ahead of Brexit, of international agreements which the EU has previously agreed on the UK's behalf. The latest report considers an international agreement relating to trade between the UK and EEA-EFTA states, which was drawn to the attention of the house as a matter of political importance.

See: LNB News 04/03/2020 77.

Brexit Bulletin—UK targets ‘world-leading’ FTA with the US

On 1 March 2020, the Department for International Trade (DIT) published its negotiating objectives for a free trade agreement (FTA) between the UK and the US, the UK’s largest bilateral trading partner, as part of its plan to seek FTAs with ‘like-minded democracies’. While the Prime Minister’s Task Force Europe focuses on the UK-EU future relationship, the DIT is focussing efforts further afield. Under the terms of the Withdrawal Agreement between the UK and the EU, the UK may negotiate trade deals with third countries, provided those arrangements do not come into effect until after the transition period ends (unless otherwise agreed by the EU).

See: LNB News 02/03/2020 57.

Brexit legislation updates

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

Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019–21

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2020, as introduced to Parliament, was published on 5 March 2020, together with various related Factsheets and Explanatory Notes.

See: LNB News 05/03/2020 82.

Private International Law (Implementation of Agreements) Bill [HL]

The Private International Law (Implementation of Agreements) Bill (a Bill to implement the Hague Conventions of 1996, 2005 and 2007 and to provide for the implementation of other international agreements on private international law) had its first reading in the House of Lords on 27 February 2020.

To track this Bill, see: LNB News 28/02/2020 1.

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 in Parliament

Civil Aviation (Insurance) (Amendment) (EU Exit) Regulations 2020

SI 2020/Draft: This draft enactment is laid in exercise of legislative powers introduced under the European Union (Withdrawal) Act 2018 in preparation for Brexit. This enactment is proposed to amend UK subordinate legislation in relation to civil aviation 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 immediately before IP completion day.

See: LNB News 06/03/2020 29.

Air Traffic Management (Amendment etc) (EU Exit) Regulations 2020

SI 2020/Draft: This draft enactment is laid in exercise of legislative powers introduced under the EU(W)A 2018 in preparation for Brexit. This enactment is proposed to amend one piece of UK secondary legislation and two pieces of retained EU legislation. It is also proposed to revoke two pieces of retained EU legislation in relation to air traffic management 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 immediately before IP completion day and fully on IP completion day.

See: LNB News 04/03/2020 17.

Editor's picks—the practice area/sector view

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

Commercial

Alan Wolff seeks World Trade Organization multilateral trading system overhaul

The Deputy Director General, Alan Wolff, has called for more intensive engagement in the World Trade Organization (WTO)’s multilateral trading system, in an effort to consolidate its relevance. Wolff has highlighted that 80% of the world’s trade is non-discriminatory, and that despite the existence of several hundred bilateral and regional trade agreements, the WTO’s rules cover 98% of world trade. Wolff has advised that the system’s rules be updated to reflect developments in the world of digital commerce, meet shared environmental objectives and guarantee gender equality and the participation of small and medium enterprises in the trade process.

See: LNB News 05/03/2020 85.

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

Dispute Resolution

Developments for the Hague Convention on Private International law

On 4 March 2020 a meeting of the Council on General Affaires and Policy of the Hague Convention on Private International law (HCCH) took place during which new members were welcomed, countries applied to become members and members joined different Hague Conventions.

See: LNB News 04/03/2020 88.

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

Financial Services

UK priorities for its future relationship with the EU—financial services

The UK government’s position paper outlining its priorities and approach for negotiations on its future relationship with the EU, published on 27 February 2020, included a proposal in general terms on how financial services should be covered in the Comprehensive Free Trade Agreement (CFTA) to be negotiated with the EU, using the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the EU-Japan Economic Partnership Agreement (EPA) as models. Equivalence in financial services was covered separately in a section on technical and other processes beyond the scope of the future relationship negotiations.

See: LNB News 28/02/2020 61.

Government publishes letter from chancellor to Valdis Dombrovskis on financial services equivalence

The government has published a letter from Chancellor of the Exchequer, Rishi Sunak, to Executive Vice-President for 'An Economy that Works for People', Valdis Dombrovskis, on the UK’s preparations for assessments of financial services equivalence. In the letter, the chancellor notes that the UK and the EU have agreed to start assessing equivalence with respect to each other under their respective frameworks as soon as possible after the UK’s withdrawal from the EU, endeavouring to conclude these assessments before the end of June 2020 (though the chancellor notes that the date has not been included in the EU’s mandate agreed on 25 February 2020).

See: LNB News 02/03/2020 61.

PRA letter on outstanding EU liabilities following the UK’s withdrawal from the EU

The Prudential Regulation Authority (PRA) published a letter from Anna Sweeney, its Executive Director for Insurance Supervision, to PRA-regulated insurance firms, on their contingency plans to ensure ongoing service continuity in respect of EU liabilities. The letter is specifically relevant to firms which intend to rely on EU run-off regimes, or which intend to transfer their EU liabilities to an EU-authorised insurer but have not yet completed this process.

See: LNB News 28/02/2020 53.

Barnier speech on co-operation in the age of Brexit

The European Commission’s Head of Task Force for Relations with the UK, Michel Barnier, gave a speech to the students at ESCP Europe on co-operation in the age of Brexit. Areas covered include the effect of the loss of the financial services passports and the EU’s approach to granting equivalence.

See: LNB News 27/02/2020 27.

EU says trade talks won’t cover financial services access

The EU on 27 February 2020 said that British access to the bloc’s financial markets will not form part of trade negotiations, coming hours after the UK said it wanted the agreement to secure access with a legally binding set of equivalence rules.

See News Analysis: EU says trade talks won’t cover financial services access.

Lloyd’s of London fears lost EU market access if trade talks fail

On 26 February 2020, Lloyd’s of London called on UK Brexit negotiators to seek a guarantee that it has the same access to EU markets as other third-country underwriters to enable the market to remain competitive.

See: Lloyd’s of London fears lost EU market access if trade talks fail.

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

Life Sciences

UK announces it will not participate in the Unified Patent Court

Paragraph ​​5 of the​ government document ‘The Future Relationship with the EU: The UK’s Approach to Negotiations’ states that ‘we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK’. This strongly suggests that the UK will not be able to participate in the unitary patent or Unified Patent Court​ (UPC)​​ system because the UPC Agreement provides that the UPC must respect and apply EU​ law and the jurisdiction of the Court of Justice.

See: LNB News 28/02/2020 57.

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

Local Government

Brexit immigration changes leave children in care and care leavers more vulnerable

The Great Manchester Immigration Aid Unit (GMIAU) has published a report concerning the impacts of Brexit immigration changes on children in care and care leavers. While supporting local authorities with the application of European national children in care to the EU Settlement Scheme, GMIAU noticed that the procedures were not designed for children with complicated lives. Due to the lack of evidence required to prove their nationality or residence history, none of the children supported by GMIAU were able to make an application. In order to protect these children, GMIAU has recommended that a declaratory system and a fee waiver for legal aid be introduced.

See: LNB News 04/03/2020 81.

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

Public Law

Cost of Brexit preparations estimated at £4.4bn

The National Audit Office (NAO) has published a report examining how much UK government departments have spent on activities in preparation for Brexit. The NAO report considers the overall cost of domestic preparations prior to exit day, how the costs were funded, and what the departments spent money on. It also examines central oversight and transparency of costs. In its report, the NAO estimated that government departments spent at least £4.4bn on Brexit preparations between June 2016 and 31 January 2020. This exclude​​​s indirect costs and future costs, such as the financial settlement and costs associated with establishing the future UK relationship with the EU.

See: LNB News 06/03/2020 17.

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

● Many Brexit SIs contain references to exit day, but in light of the implementation period, is there a general provision that says you must read ‘exit day’ as ‘IP completion day’ or will the government need to issue separate correcting legislation?

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.

Useful information

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

● The Lugano Convention: a good first step: Profession Brexit: In this article, David Greene commends the government's commitment to Lugano and hopes that similar good sense will prevail in the EU. See New Law Journal: 170 NLJ 7877, p20

● Competition time: Legal Update Brexit/Competition: In this article, Diana Johnson explores the post-Brexit role of the Competition and Markets Authority. See New Law Journal: 170 NLJ 7877, p15

● Up in the air? Legal Update Brexit/Aviation: In this article, Sajid Suleman scans the horizon for some tips on aviation law after Brexit. See New Law Journal: 170 NLJ 7877, p13

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

We are also on Twitter—you can follow us: @LexisNexisUK.


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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.