Brexit highlights—8 January 2021

Brexit highlights—8 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 8 January 2021.

Brexit highlights—IP completion day special edition

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

The last-minute agreement set in motion a chain of events over the festive period, including hasty publication and approval of key documents, fast-track legislation and the reissuing of hundreds of pieces of Brexit transition guidance. UK and EU leaders quickly endorsed the agreement, which was signed on 30 December 2020 and then approved by the UK Parliament, along with implementing legislation, which was passed in a single day. The deal was published provisionally in the Official Journal on 31 December 2020 but will not be finalised and enter into force fully until ratified in the European Parliament. In the circumstances, the UK and EU agreed that the deal would apply provisionally from 1 January 2021, pending full ratification by the EU.

This latest edition of the Brexit highlights focusses primarily on key developments over the last week. However, to help you to catch up, we issued a special edition of our Brexit highlights on 1 January 2021, collating all the key news and legislation updates from across a range of LexisNexis® practice areas. This special IP completion day edition also provides key details and analysis of the deal, plus tips and analysis on the immediate considerations and priorities for lawyers, with links to essential guidance and further reading.

See News Analysis: Brexit highlights—1 January 2021.

General Brexit headlines

This section contains key overarching Brexit news headlines.

EU-UK Trade and Cooperation Agreement on track for ratification by February 2021 deadline, EU diplomat says

The EU-UK Trade and Cooperation Agreement (TCA), currently under provisional application, is on track to be ratified by a deadline of the end of February 2021, a senior EU diplomat said on 5 January 2021.

See News Analysis: EU-UK Trade and Cooperation Agreement on track for ratification by February 2021 deadline, EU diplomat says.

The EU-UK Trade and Cooperation Agreement—new law, not EU law

In this analysis, Philip Moser QC of Monckton Chambers, explores the nature of the TCA, which is governed primarily by international law, rather than EU law.

See News Analysis: The EU-UK Trade and Cooperation Agreement—new law, not EU law.

Finance and data top Brexit deal’s list of unfinished business

Britain’s trade deal with the EU marked the country’s final break from a regulatory framework that guided its laws for four decades, but it also left some key areas of unfinished legal realignment likely to dominate post-Brexit relations for years to come.

See News Analysis: Finance and data top Brexit deal’s list of unfinished business.

Brexit Bulletin—GB-EU Border Operating Model updated post-IP completion day

The Cabinet Office has published a further update to the revised GB-EU Border Operating Model, which was reissued on 31 December 2020, following the signature of the TCA, and associated arrangements agreed between the UK and EU. The updated model includes additional guidance on preferential Rules Of Origin, as well as updates to the associated text and case studies. Further updates may be issued, so stakeholders are advised to monitor these pages for updates.​

See: LNB News 05/01/2021 91.

Brexit Bulletin—third meeting of Specialised Committee on Cyprus Sovereign Base Areas

The UK and EU held the third Specialised Committee meeting on the implementation of the Protocol on the UK's Sovereign Base Areas in Cyprus on 30 December 2020, with EU and UK delegations convening via video conference. The Committee was established by Article 165 of the Withdrawal Agreement to facilitate the implementation and application of the Protocol relating to the Sovereign Base Areas in Cyprus. The UK and EU reaffirmed their commitment to ‘smooth implementation’ of the Protocol and agreed to meet in the first quarter of 2021 to review the operational phase of implementation.

See: LNB News 01/01/2021 3.

Brexit Bulletin—Withdrawal Agreement Joint Committee document collection updated

The Cabinet Office has updated its Withdrawal Agreement Joint Committee document collection to include Foreign, Commonwealth & Development Office’s joint statement on the December 2020 Specialised Committee on Citizens’ Rights meeting between the government and European Commission. The joint statement was originally published on 15 December 2020.

See: LNB News 07/01/2021 47.

Brexit legislation updates

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

DHSC updates documents relating to Medicines and Medical Devices Bill 2020

The Department of Health and Social Care (DHSC) has updated a number of documents relating to the Medicines and Medical Devices Bill 2020. The factsheets provide further information on key areas of the Bill.

See: LNB News 06/01/2021 28.

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

Protecting against the Effects of the Extraterritorial Application of Third Country Legislation (Amendment) (EU Exit) Regulations 2020

SI 2020/1660: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment amends one piece of UK secondary legislation and two pieces of retained direct EU legislation in relation to the effects of the extraterritorial application of third country 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 on 1 January 2021.

See: LNB News 06/01/2021 15.

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 (NHSA 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 NHSA 2006. It came into force on IP completion day.

See: LNB News 01/01/2021 2.

Drivers’ Hours and Tachographs (Amendment) Regulations 2020

SI 2020/1658: This enactment is made in exercise of legislative powers under the EU(FR)A 2020 in preparation for IP completion day. This enactment amends three pieces of UK legislation in relation to rules relating to drivers’ hours and tachographs. It came into force in part immediately before IP completion day and in full on IP completion day.

See: LNB News 04/01/2021 9.

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 amends 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.

Meat Preparations (Amendment and Transitory Modification) (England) (EU Exit) Regulations 2020

SI 2020/1666: This enactment is made in exercise of legislative powers under the Trade in Animals and Related Products Regulations 2011 in preparation for IP completion day. This enactment amends one piece of retained direct EU legislation in relation to meat preparations. It came into force on 1 January 2021.

See: LNB News 05/01/2021 41.

Meat Preparations (Amendment and Transitory Modification) (Wales) (EU Exit) Regulations 2021

SI 2021/1: This enactment is made in exercise of legislative powers under the Trade in Animals and Related Products (Wales) Regulations 2011 in preparation for IP completion day. This enactment amends one piece of retained direct EU legislation in relation to meat preparations. It came into force on 6 January 2021.

See: LNB News 07/01/2021 16.

Organic Production (Organic Indications) (Amendment) (EU Exit) Regulations 2020

SI 2020/1669: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment amends one piece of retained direct EU legislation in relation to organic products 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 1 January 2021.

See: LNB News 06/01/2021 11.

FLEGT Licensing Scheme (Council Regulation (EC) No 2173/2005) (Amendment) Regulations 2021

SI 2021/2: Amendments are made to the Council Regulation (EC) 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community to list Indonesia as a ‘Partner Country’ for the purpose of the Great Britain Forest Law Enforcement, Governance and Trade (‘FLEGT’) licensing scheme, enabling the continued supply of legally harvested timber and timber products into the UK from Indonesia, after the end of the transition/ implementation period. These Regulations came into force on 5 January 2021.

See: LNB News 06/01/2021 9.

Trade in Endangered Species of Wild Fauna and Flora (Commission Regulation (EC) No 865/2006) (Amendment) Regulations 2020

SI 2020/1668: Amendments are made to Commission Regulation (EC) 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) 338/97 on the protection of species of wild fauna and flora by regulating trade therein to set the criteria for authorising traders, individuals or their representatives, who mistakenly use a non-designated point of entry/exit (‘PoE’) in respect of import or (re-)export to or from Great Britain, to do so on one occasion after the end of the Brexit transition/ implementation period. These Regulations came into force at 11.30 pm on 31 December 2020.

See: LNB News 06/01/2021 7.

Direct Payments to Farmers (Miscellaneous Amendments) (Scotland) Regulations 2020

SSI 2020/460: Provisions are made to specify the manner by which Scottish Ministers will determine the annual financial ceiling which will provide the basis for calculating payments to farmers and crofters in Scotland from 2021 onwards. In addition, this instrument makes amendments to retained EU law governing the direct payment schemes to ensure their continued operability in Scotland and removes provisions from that body of retained EU law which are not relied upon in Scotland. These Regulations came into force on 1 January 2021.

See: LNB News 05/01/2021 3.

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 EU importers of conflict minerals, required in light of the Northern Ireland Protocol to the Withdrawal Agreement. These Regulations came into force on 1 January 2021.

See: LNB News 01/01/2021 7.

Social Security (Norway) Order (Northern Ireland) 2020

SR 2020/357: Provisions are made to make provision for the modification of specified social security legislation, so as to give effect in Northern Ireland to the amendments agreed on 7 December 2020 (the Agreement) to the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway, and the Protocol concerning Medical Treatment, done at Oslo at 19 June 1990 (the Convention) in Northern Ireland. This Order came into force on 1 January 2021.

See: LNB News 05/01/2021 43.

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 (SAMLA 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.

Draft Brexit SIs laid in Parliament

Draft Brexit SIs laid for sifting and sifting committee recommendations

Brexit SI Bulletin—latest drafts and sifting committee reports, 8 January 2021

Public Law analysis: 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 8 January 2021.

See News Analysis: Brexit SI Bulletin—latest drafts and sifting committee reports, 8 January 2021.

Brexit SI Bulletin—drafts laid for sifting on 7 January 2021

Public Law analysis: 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 drivers’ hours and tachographs for the carriage of goods and passengers by road, to address deficiencies in retained EU law. These deficiencies have been introduced by Regulation (EU) 2020/1054.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 7 January 2021.

Brexit SI Bulletin—drafts laid for sifting on 5 January 2021

Public Law analysis: 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 the Social Fund Maternity and Funeral Expenses (General) Regulations 2005, SI 2005/3061. This instrument is needed to maintain the policy position that eligible EEA nationals and their family members should be able to claim a social fund funeral expenses payment for funerals taking place in the UK as well as in EEA states and Switzerland, now the UK is no longer a Member State of the EU.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 5 January 2021.

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.

Businesses and other organisations—Brexit transition guidance reissued on IP completion day

At the end of the Brexit transition/implementation period at 11 pm on 31 December 2020 (IP completion day), the government reissued a number of webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include: setting up a business, audit, accounting, data protection, company registration and compliance. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 28.

Common Travel Area—Brexit transition guidance reissued on IP completion day

At the end of the Brexit transition/implementation period at 11 pm on 31 December 2020 (IP completion day), the government reissued a number of webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include: residence rights, travel, social security, healthcare and education. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 8.

Construction Products in NI—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include practical information on placing construction products on the Northern Ireland (NI) market and unfettered access provisions. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 06/01/2021 27.

Data protection and copyright—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include data protection, intellectual property and copyright in the UK. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 05/01/2021 95.

EU and EEA citizens in the UK—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include residence rights, travel, social security, healthcare and education. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 9.

EU funding—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include guidance on programmes for which it is still possible to apply for funding under the current and next spending frameworks. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred, some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 20.

Education—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include study abroad, teachers and data protection. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 14.

Energy and environment—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include climate change requirements, emissions, trading gas and electricity, agriculture reporting and technical requirements. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 11.

Goods on the market—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include manufactured goods, rules of origin, product marking, labelling, food and drink and intellectual property. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 19.

Healthcare—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include international healthcare arrangements, access to healthcare in the UK and EU, health claims and reporting (regulation of medicines and medical devices are covered separately). The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 23 and LNB News 08/01/2021 7.

IP—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include registering and renewing.eu domain named in the UK, the IP system and the operating of the Intellectual Property Office. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 10LNB News 04/01/2021 17 and LNB News 05/01/2021 37.

Import/export—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include trade, import and export rules for specific sectors and products. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred, some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 29.

Information Law—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include telecoms, broadcasting, eCommerce, personal data, digital services and intellectual property. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 15.

International agreements—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include guidance and information on the UK’s relationship with Switzerland, Norway, Iceland, Liechtenstein and other non-EU countries. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred, some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 21.

Lawyers, legal services and cross-border legal cases—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include guidance for legal professionals and service providers, recognition of professional qualifications and cross-border legal cases. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 17.

Life sciences—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include regulation of medicinal products, medical devices and clinical trials. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 30.

National Insurance and social security—Brexit transition guidance reissued post-IP completion day

Subjects covered include adding countries who have agreed to apply the ‘detached worker’ rules to workers coming to the UK from the EEA or Switzerland and vice versa. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 07/01/2021 32.

Noise emission in the environment by outdoor equipment—Brexit transition guidance reissued post-IP completion day

Subjects covered include guidance on the Noise Emission in the Environment by Equipment for Use Outdoors Regulations 2001, as amended by the Product Safety and Metrology et. (Amendment etc) (EU Exit) Regulations 2019. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 07/01/2021 62.

Marketing authorisations—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include the process for applying for marketing authorisations (MA) via the decentralised and mutual recognition reliance procedure (MRDCRP), the European Commission Decision Reliance Procedure (ECDRP) and the Unfettered Access Procedure (UAP). The guidance within the refreshed webpages may not necessarily be new, but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 04/01/2021 94.

Moving goods into, out of, or through NI—Brexit transition guidance reissued post–IP completion day

Subjects covered within this guidance include moving goods into, out of, or through Northern Ireland (NI). The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU–UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 07/01/2021 61 and LNB News 07/01/2021 63.

Product marketing standards—Brexit transition guidance reissued post-completion day

Subjects covered within this guidance include fresh fruit and vegetable marketing standards and hatching eggs and chicks marketing standards. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 04/01/2021 18.

Public procure​​ment—Brexit transition guidance reissued by Cabinet Office post-IP completion day

Subjects covered include public procurement. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 08/01/2021 8.

Rail transport—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include rail transport for both domestic and cross–border rail operations. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post–IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU–UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 04/01/2021 97.

Receiving interest, royalties or dividends payments from the EU—Brexit transition guidance reissued post-IP completion day

HMRC has published new guidance to remind taxpayers that, from 1 January 2021, since EU directives no longer apply to payments to the UK, some EU countries may start to deduct tax from payments of interest, royalties and dividends. Taxpayers should consider whether the terms of the double tax treaty between the UK and the state of the payer could reduce or eliminate the withholding, and whether they need to make a new or revised claim to the tax authorities of that country. Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 05/01/2021 94.

Rules of origin and overseas goods—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include rules of origin for goods, VAT and reporting on EU sales for VAT purposes. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 25.

Sanctions—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include the UK sanctions framework, sanctions relating to specific countries and related guidance. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 24.

Suppling medicines and medical devices to Northern Ireland—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include what you need to do to supply authorised medicines from Great Britain to Northern Ireland, alternative supply chain options and conformity marketing. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 05/01/2021 32.

Technology, media and telecoms—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include telecoms, broadcasting, eCommerce, personal data, digital services and intellectual property. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 22.

Travel and transport—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include international travel services, transporting goods to or from the UK and driving in the EU. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 18.

UK citizens in the EU—Brexit transition guidance reissued on IP completion day

Subjects covered within this guidance include residence rights, travel, social security, healthcare and education. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 16.

UK International DNA and fingerprint exchange policy—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include the policy governing the international exchange of data held on forensic information databases under the Forensic Information Database Strategy Board’s remit. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 06/01/2021 29.

Apply to become a registered exporter if you're established in Northern Ireland—Brexit transition guidance reissued post-IP completion day

HMRC has published new guidance on how to apply to HMRC to become a registered exporter on the Registered Exporter (REX) system. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 05/01/2021 85.

Import alcohol into the UK from 1 January 2021—new Brexit transition guidance from HMRC

HMRC has published new guidance with information on importing alcohol into the UK and the duty and VAT need to be paid for each method 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 04/01/2021 92.

Importing tobacco products into the UK from 1 January 2021—new Brexit transition guidance from HMRC

HMRC has published new guidance with information on importing tobacco products into the UK from countries inside and outside the 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 04/01/2021 86.

Receiving, storing and moving excise goods—new Brexit transition guidance from HMRC

HMRC has published new guidance with information on how to move, store and trade duty-suspended and duty-paid excise goods in the UK 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 04/01/2021 88.

Selling duty-free or duty paid alcohol and tobacco products—new Brexit transition guidance from HMRC

HMRC has published new guidance with information on selling duty-free or duty-paid alcohol and tobacco products through airlines, on ships, on trains and in export shops in the UK 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 04/01/2021 90.

VAT refund process from 1 January 2021—updated Brexit transition guidance from HMRC

HMRC has updated its guidance on claiming VAT refunds 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 as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 07/01/2021 54.

Updates for business sectors—Brexit transition guidance reissued post-IP completion day

Subjects covered within this guidance include the creative industries sector, the arts, culture and heritage sectors, the digital, technology and computer services sectors, the media and broadcasting sectors, the sports and recreation sector and the tourism sector. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 05/01/2021 98.

Beyond Brexit

Agreement in principle for EU-China investment agreement

On 30 December 2020, the EU and China concluded in principle the negotiations for a Comprehensive Agreement on Investment (CAI). The parties' negotiations on investment protection and investment dispute settlement will, however, continue.

See: LNB News 04/01/2021 76.

Beyond Brexit—UK–Switzerland agree on Agriculture in Joint Committee decision

The Department for International Trade has published a decision on Agriculture between the Joint UK-Switzerland Committee. The agreement includes commitments involving the enabling of ‘import and marketing of organically produced agricultural products and foodstuffs within the UK and Switzerland’. The decision also recognises the UK Control Bodies who issue Certificates of Inspection as well as the commitment to review the arrangements by July 2022.

See: LNB News 06/01/2021 24.

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.

Arbitration

IP completion day

As identified in our previous highlights, 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.

To find out more, see Checklist: What does IP completion day mean for arbitration? which is being reviewed in light of the TCA.

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 shall 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 (see Gordon Nardell QC and Michal Hain’s comments in LNB News 30/12/2020 6).

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

Banking and Finance

Comment—Brexit finance equivalence still achievable as eyes turn to administrative co-operation

UK financial-services companies gained little from the Christmas Eve Brexit deal, with Brussels still refusing to offer market access based on a finding that banking and finance rules are equivalent to the EU’s. That legal decision could still come, as an end to the frenzy of trade talks allows cooler heads to prevail—but a new memorandum of understanding for future co-operation is, in practice, unlikely to offer much more than a talking shop. For more information, see News Analysis: Comment—Brexit finance equivalence still achievable as eyes turn to administrative co-operation.

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

Commercial

DCMS updates for business sectors—Brexit transition guidance reissued post-IP completion day

Following the end of the Brexit transition/implementation period at 11 pm on 31 December 2020 (IP completion day), the government has been reissuing a number of Brexit webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Sectors covered include the creative industries sector, the arts, culture and heritage sectors, the digital, technology and computer services sectors, the media and broadcasting sectors, the sports and recreation sector and the tourism sector. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 05/01/2021 98.

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

Construction

Import/export—reissue of Brexit transition guidance

At the end of the Brexit transition/implementation period at 11 pm on 31 December 2020 (IP completion day), the government reissued a number of webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include trade, import and export rules for specific sectors and products. The guidance within the refreshed webpages may not be new but some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred, some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day.

See: LNB News 01/01/2021 29.

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

Corporate

Businesses and other organisations—Brexit transition guidance reissued on IP completion day

At the end of the Brexit transition/implementation period at 11 pm on 31 December 2020 (IP completion day), the government reissued a number of webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include (amongst other things) setting up a business, audit, accounting, data protection, company registration and compliance. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance simply contains updates and reference amendments to reflect the end of the transition period having occurred. However, some of the guidance published on IP completion day also contains substantive updates to reflect changes taking effect in light of the EU-UK Trade and Co-operation Agreement (TCA) (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 28.

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

Corporate Crime

Criminal justice and co-operation post IP completion day

The Home Secretary, Priti Patel, has hailed 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 (PNR) data. The Home Office also highlights measures allowing for continued operational co-operation with Europol and Eurojust. See: LNB News 28/12/2020 38.

Following IP completion day, the government reissued the UK International DNA and fingerprint exchange policy—Brexit transition guidance. See: LNB News 06/01/2021 29. The government also reissued its Sanctions—Brexit transition guidance. See: LNB News 01/01/2021 24.

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

Dispute Resolution

Implications of the EU-UK TCA for civil litigation

Although the EU-UK TCA contains extensive provisions on judicial and law enforcement co-operation in relation to criminal matters, it is silent on civil judicial co-operation, leaving open questions regarding the immediate implications for cross-border dispute resolution upon the end of the Brexit transition period at 11 pm on 31 December 2020 (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.

See: LNB News 30/12/2020 6.

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

Employment

PPTT analysis finds EU-UK Trade Cooperation Agreement leaves workers’ rights ‘at serious risk of erosion’

The Progressive Policy Think Tank (PPTT) has published an analysis of the EU-UK post-Brexit trade deal, highlighting the benefit of the deal over no deal but finding important implications for labour, environmental protections and state aid. In particular, the PPTT analysis finds that the deal ‘leaves workers’ rights and environmental protections at serious risk of erosion’ because the newly agreed process for safeguarding a ‘level playing field’ sets such as high bar for proof that the key elements are ‘likely to be enforced only rarely’.

See: LNB News 28/12/2020 25.

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 EU-UK Trade and Cooperation Agreement. 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.

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

Energy

Ofgem approves BMRS as a reporting service following Brexit

Ofgem has announced the approval of the Balancing Mechanism Reporting Service (BMRS) as a ‘reporting service’, as defined in article 4(7) of Regulation (EU) No 543/2013 (The Transparency Regulation). The approval follows a request from National Grid ESO and Elexon in light of Brexit. Ofgem has published a letter explaining the reasons for its decision.

See: LNB News 05/01/2021 9.

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

Environment

IEGS paves way for the Office for Environmental Protection

The Interim Environmental Governance Secretariat (IEGS) commenced work on 1 January 2021 as the transition team for the Office of Environmental Protection (OEP). The IEGS is expected to continue until July 2021, when the OEP should begin to operate under the Environment Bill. The three main responsibilities of the IEGS are to determine which environmental complaints will fall within the remit of the OEP once they have taken over, to monitor the progress of the government’s 25 Year Environment Plan and to support the OEP Chair-designate once they have been appointed. The IEGS’ powers extend to cover the whole of the UK and Northern Ireland, except in relation to the 25 Year Environment Plan which is not relevant to Northern Ireland.

See: LNB News 05/01/2021 29.

Office for Nuclear Regulation takes on role of safeguards regulator post-Brexit

The Office for Nuclear Regulation (ONR) has announced that, following the UK's withdrawal from the European Union, it is to be the UK’s nuclear safeguards regulator, responsible for the domestic safeguards regime and operating the UK State System of Accountancy for, and Control of, Nuclear Materials. The ONR explained that since it was initially tasked by the UK Government to ‘establish a domestic safeguards regime after Brexit, [it has]...developed a team of safeguards specialists, including inspectors and nuclear material accountants, and implemented a bespoke IT system, SIMRS (Safeguards Information Reporting and Management System)’.

See: LNB News 04/01/2021 68.

Defra publishes explanation of changes to the Habitats Regulations as a result of Brexit

Defra has published a policy paper explaining the changes made to the Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (the 2017 Regulations) by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, SI 2019/579 (the 2019 Regulations). The document covers the position for both England and Wales, which includes their inshore waters up to 12 nautical miles and explains how the amendments made by the 2019 Regulations to the 2017 Regulations work. However, this document does not cover the position for offshore waters beyond 12 nautical miles, although it is expected that similar processes are applied. Most of the changes made by the 2019 Regulations, which took effect on 31 December 2020, involved transferring functions to the appropriate authorities in England and Wales from the European Commission. Scotland and Northern Ireland have also made similar changes to their legislation.

See: LNB News 05/01/2021 14.

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

Family

Brexit amendments made to FPR 2010 Practice Directions

Details of amendments to various Family Procedure Rules 2010 Practice Directions consequential to Brexit have been issued. The amendments came into force at the same time as the Family Procedure Rules 2010 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019, SI 2019/517, ie on implementation period (IP) completion day (11 pm on 31 December 2020) (as amended by the European Union (Withdrawal Agreement) Act 2020 from the original provision in SI 2019/517, reg 1 that the regulations would come into effect on exit day, ie 31 January 2020). The amending document is dated 28 March 2019 but was issued after IP completion day.

See: LNB News 07/01/2021 17.

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

Financial Services

ESMA publishes MoUs with the BoE on CCPs and CSDs

The European Securities and Markets Authority (ESMA) published memoranda of understanding (MoU) reached with the Bank of England (BoE) in relation to arrangements for co-operation on the monitoring and supervision of central counterparties (CCPs) established in the UK, and in relation to ESMA’s monitoring of the ongoing compliance with recognition conditions by central securities depositories (CSDs) established in the UK.

See: LNB News 04/01/2021 67.

ESMA update on FIRDS publication following end of the Brexit transition period

ESMA published its first set of Financial Instruments Reference Data System (FIRDS) files following the end of the Brexit transition period.

See: LNB News 05/01/2021 93.

ESMA withdraws the registrations of six UK-based CRAs and four TRs following end of transition period

ESMA, the supervisor of EU credit rating agencies (CRAs) and trade repositories (TRs), announced the withdrawal of the registrations of a number of UK-based CRAs and TRs. ESMA’s decisions follow the end of the transition period of the UK’s withdrawal from the EU, which occurred on 31 December 2020.

See: LNB News 04/01/2021 64.

Co-operation arrangement between the SRB and BoE comes into force

A co-operation arrangement between the Single Resolution Board (SRB) and the BoE came into force on 1 January 2021. The arrangement sets out a framework for the exchange of information and co-operation in connection with the resolution planning and the implementation of such planning with respect to entities with cross-border operations.

See: LNB News 06/01/2021 19.

FCA details MoUs with European authorities in the areas of securities, insurance and pensions, and banking

The Financial Conduct Authority (FCA) reminded stakeholders of memoranda of understanding (MoUs) that the FCA has entered into with European authorities in the areas of securities, insurance and pensions, and banking.

See: LNB News 04/01/2021 63.

FCA uses its TTP to modify UK MiFIR derivatives trading obligation

The FCA published a statement setting out how it will be using the temporary transitional power (TTP) to modify the UK derivatives trading obligation (DTO) in the onshored Markets in Financial Instruments Regulation (EU) 600/2014 (UK MIFIR).

See: LNB News 31/12/2020 10.

FCA: Regulatory change for firms as Brexit transition period ends

As of 11pm on 31 December 2020, the Brexit transition period ended and EU law no longer applies in the UK. For many financial services businesses, this means changes to existing systems and services.

See: LNB News 01/01/2021 5.

FCA and PRA publish webpages on post-Brexit Gibraltar passporting arrangements

The FCA and the Prudential Regulation Authority (PRA) published webpages on post-Brexit Gibraltar passporting arrangements. The FCA and PRA explain that the Brexit transition period has ended and passporting rights for EEA firms have ceased. However, the FCA and the PRA note that the transitional arrangements preserving deemed passporting for Gibraltarian firms after the end of the transition period under The Financial Services (Gibraltar) (Amendment) (EU Exit) Regulations 2019, SI 2019/589 have been extended until 31 December 2021 and can be further extended until such time as the permanent arrangements of the Gibraltar Authorisation Regime are in place.

See: LNB News 04/01/2021 82.

FCA closes window for temporary permissions regime notifications

The FCA updated its webpage on the temporary permissions regime (TPR). The updated webpage states that the window for EEA firms and fund managers to notify the FCA that they wish to use the TPR is now closed. The TPR took effect at 11 pm on 31 December 2020.

See: LNB News 31/12/2020 22.

UK will not be a ruletaker to get EU equivalence, BoE says

Forcing UK firms to continue following financial services rules set by the EU is too high a price to pay to secure access to the EU’s markets in March 2021, the Bank of England (BoE) told an influential parliamentary committee on 6 January 2021.

See News Analysis: UK will not be a ruletaker to get EU equivalence, BoE says.

The Brexit trade deal—what it really means for financial services

Jonathan Herbst, global head of Financial Services, Simon Lovegrove, global director of Financial Services Knowledge, Innovation and Product, and Senior Associate Matthew Gregory all of Norton Rose Fulbright LLP discuss the financial services aspects of the EU-UK Trade and Cooperation Agreement.

See News Analysis: The Brexit trade deal—what it really means for financial services.

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

Immigration

Implementing the TCA—business immigration implications

The TCA contains a limited number of immigration-related provisions, primarily related to the supply of services, intra-corporate transferees, and short-term business visitors/business visits for the purpose of establishment. The government issued Statement of Changes in Immigration Rules CP 361 on 31 December 2020 in order to give effect to various aspects of these agreed provisions in the UK, as well as to relevant provisions in the recent UK-Switzerland Services Mobility Agreement (approved in early December 2020). This analysis looks at these provisions, and also includes comment from Kate Gamester, knowledge development lawyer at Charles Russell Speechlys.

See News Analysis: Implementing the TCA—business immigration implications.

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

Information Law

UK-EU data flows, adequacy and regulatory changes from IP completion day

The TCA includes a chapter on data flows and personal data protection, providing good news for data protection practitioners. Eleonor Duhs, director and barrister at Fieldfisher, discusses the implications of this deal and the next steps regarding data adequacy.

See News Analysis: UK-EU data flows, adequacy and regulatory changes from 1 January 2021.

Updated ICO guidance on international transfers, including suggested SCC updates for UK GDPR

The ICO has published updated guidance on international transfers under UK data protection law after IP completion day.

See: LNB News 05/01/2021 58.

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

Insurance & Reinsurance

PFS article discusses lack of insurance equivalence and qualification recognition in EU-UK TCA

The Personal Finance Society (PFS) published an article on the implications of the EU-UK TCA for general insurance. The PFS notes that the deal contains ‘very limited’ detail on insurance and the mutual recognition of qualifications.

See: LNB News 05/01/2021 92.

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

IP

Protecting international intellectual property in the UK—Brexit transition guidance

The Intellectual Property Office (IPO) has issued guidance about protecting international IP rights in the UK from 1 January 2021. All existing EU trade marks (EUTMs), registered Community designs (RCD) and international registrations designating the EU will cover only the 27 EU Member States and will not provide protection in the UK. Under the terms of the Withdrawal Agreement, from 1 January 2021, the IPO will create a re-registered UK design for every RCD and every international design, and a comparable UK trade mark for every registered EUTM and every international trade mark that is protected at the end of the transition period. There is an option to opt out of the comparable UK right, with key opt out forms for holding comparable trade marks and re-registered designs contained within the guidance.

See: LNB News 05/01/2021 37.

Protecting UK intellectual property abroad—Brexit transition guidance reissued on IP completion day

Following the end of the Brexit transition/implementation period, the government has been reissuing a number of Brexit webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include protecting your UK IP abroad. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published post-IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK TCA (and related arrangements). Further guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 04/01/2021 17.

EURid issues third Brexit notice

EURid has emailed all UK registrants of the.eu domain name to notify them that, as of 1 January 2021, their domain name is no longer compliant with the.eu regulatory framework and is thus moved to the ‘suspended’ status until 31 March 2021. A domain name in the ‘suspended’ status can be reinstated by updating the registration data to meet eligibility criteria, which requires: indicating a legally established entity in one of the eligible EU Member States, updating residence to an EU Member State, or proving citizenship of an EU Member State, regardless of residence.

See: LNB News 06/01/2021 6.

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

Life Sciences

Life sciences—Brexit transition guidance reissued on IP completion day

At the end of the Brexit transition/implementation period, the government reissued a number of webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include regulation of medicinal products, medical devices and clinical trials. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK TCA (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 30.

Clinical trials—updated Brexit transition guidance from MHRA

The Medicines and Healthcare products Regulatory Agency (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.

Local Government

Homelessness, social housing and accommodation allocation—Brexit transition guidance reissued post-IP completion day

The Ministry of Housing, Communities & Local Government (MHCLG) has set out new statutory guidance to local housing authorities (LHAs) under section 169 of the Housing Act 1996 (HA 1996). The guidance is used by LHAs to assist in the carrying out of their functions under HA 1996, Pt 6 in allocating accommodation. The guidance covers the consequential changes to eligibility for assistance through HA 1996, Pt 6 and 7 (Allocation and Homelessness) post IP completion day.

See: LNB News 04/01/2021 7.

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

Pensions

Impact of EU-UK trade deal on pensions

The impact of IP completion day on UK pension schemes has been more financial than legal (eg trustees will have had to manage the market volatility caused by Brexit, as well as determine the impact of Brexit on their sponsor). 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.

While the TCA does not deal with occupational pensions and largely ignores financial services, it ensures reciprocal state pension arrangements post-IP completion day, including the continued uprating of the UK State Pension paid to pensioners who retire to the EU. It also provides for a four-month window (which can be extended to six months) during which personal data can continue to flow freely from the EU (and EEA) to the UK; this is to allow more time for an EU data adequacy decision to be adopted in respect of the UK (note that the UK has, on a transitional basis, deemed the EU and EEA EFTA States to be adequate to allow for data flows from the UK). Moreover, in the TCA, the UK has undertaken ‘not to reduce the level of protection for workers or fail to enforce employment rights in a manner that has an effect on trade’; the extent to which this will restrict the UK government’s ability to diverge from retained EU pensions laws in the future is unclear, especially as it will be difficult to prove that any lowering of protections affects trade or investment.

With the TCA now in place provisionally, trustees should seek updated advice on their investment strategy and their employer covenant, as well as review (and if necessary action) their contingency plans for Brexit.

For further information on the pensions impact of Brexit, see Practice Note: Brexit and IP completion day—the implications for pensions.

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

Private Client

Brexit transition period ended on 31 December 2020—what does this mean for Private Client lawyers?

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 EU Succession Regulation (Regulation (EU) No 650/2012) 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.

Anti-money laundering 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 anti-money laundering measures. Similarly, data protection (delivered via the General Data Protection Regulation) 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 also 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 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.

Property Disputes

126th practice direction update—Brexit

The Master of the Rolls and the Parliamentary Under-Secretary of State have signed the 126th practice direction update, which makes amendments to various practice directions in consequence of the EU Exit and came into force at the same time as the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019 which came into force on IP completion day. The new amendments are minor modifications, or consequential changes made to existing EU Exit instruments to ensure, alignment with the Withdrawal Agreement.

See News Analysis: 126th practice direction update—Brexit.

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

Public Law

Comment—EU-UK Trade and Cooperation Agreement provisions on human rights

As anticipated, the EU-UK Trade and Cooperation Agreement (TCA) agreed between the EU and UK contains specific provisions underlining the parties’ joint commitment to human rights and the rule of law. Human rights commitments are called out as an essential element of the TCA and supplementing agreements, triggering specific termination rights in some cases. Alexander Campbell, barrister at Field Court Chambers, highlights the key provisions agreed with the EU in this area.

See: LNB News 07/01/2021 77.

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

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 11pm on 31 December 2020 (IP completion day). This includes guidance on the subsidies provisions in the EU-UK Trade and Co-operation Agreement (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 Free Trade Agreements (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.

Restructuring and Insolvency

Brexit—a deal that leaves recognition of UK insolvency procedures uncertain

An article written by Mark Phillips QC at South Square looks at the impact of the draft Trade and Co-operation Agreement for restructuring and insolvency professionals.

See News Analysis: Brexit—a deal that leaves recognition of UK insolvency procedures uncertain.

Impact of the EU-UK Trade and Cooperation Agreement on cross border insolvency

This News Analysis highlights the impact of the draft EU-UK Trade and Cooperation Agreement on cross border insolvency and also highlights key Brexit materials available on Lexis®PSL Restructuring & Insolvency in preparation for implementation period completion day on 31 December 2020 and beyond.

See News Analysis: Impact of the EU-UK Trade and Cooperation Agreement on cross border insolvency.

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

Tax

HMRC publishes guidance on receiving interest, royalties or dividends payments from the EU

HMRC has published new guidance to remind taxpayers that, from 1 January 2021, since EU directives no longer apply to payments to the UK, some EU countries may start to deduct tax from payments of interest, royalties and dividends. Taxpayers should consider whether the terms of the double tax treaty between the UK and the state of the payer could reduce or eliminate the withholding, and whether they need to make a new or revised claim to the tax authorities of that country.

See: Receiving interest, royalties or dividends payments from the EU

Appointed day regulations bring into force legislation required for a replacement VAT and excise regime

The Value Added Tax and Excise Duties (Appointed Day) (EU Exit) Regulations 2020 were made on 23 December 2020. They bring into force the provisions required for a replacement VAT and excise regime following the UK’e exit from the EU Customs Union.

The Regulations appoint IP completion day as the date on which the following provisions come into force:

● The Value Added Tax (Miscellaneous Amendments and Revocations) (EU Exit) Regulations 2019, SI 2019/59

● The Value Added Tax (Accounting Procedures for Import VAT for VAT Registered Persons and Amendment) (EU Exit) Regulations 2019 SI 2019/60

● The Value Added Tax (Tour Operators) (Amendment) (EU Exit) Regulations 2019, SI 2019/73

● The Value Added Tax and Excise Personal Reliefs (Special Visitors and Goods Permanently Imported) (Amendment) (EU Exit) Regulations 2019, SI 2019/91

● The Taxation (Cross-border Trade) Act 2018 (Value Added Tax Transitional Provisions) (EU Exit) Regulations 2019, SI 2019/105

● The Value Added Tax (Place of Supply of Services) (Supplies of Electronic, Telecommunication and Broadcasting Services) (Amendment and Revocation) (EU Exit) Order 2019, SI 2019/404

● The Value Added Tax (Miscellaneous Amendments, Revocation and Transitional Provisions) (EU Exit) Regulations 2019, SI 2019/513

● The Value Added Tax (Miscellaneous Amendments and Transitional Provisions) (EU Exit) Regulations 2019, SI 2019/1214

● The Value Added Tax (Miscellaneous Amendments to Acts of Parliament) (EU Exit) Regulations 2020, SI 2020/1312

● The Value Added Tax (Miscellaneous and Transitional Provisions, Amendment and Revocation) (EU Exit) Regulations 2020, SI 2020/1495

● The Value Added Tax (Miscellaneous Amendments, Northern Ireland Protocol and Savings and Transitional Provisions) (EU Exit) Regulations 2020, SI 2020/1545

● The Value Added Tax (Northern Ireland) (EU Exit) Regulations 2020, SI 2020/1546

● The Value Added Tax (Miscellaneous Amendments to the Value Added Tax Act 1994 and Revocation) (EU Exit) Regulations 2020, SI 2020/1544

The 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 were also made on 23 December and appoint IP completion day as the day on which various provisions of primary legislation come into force, including:

● amendments to the Value Added Tax Act 1994 made by FA 2016, s 126

● Taxation (Cross-border Trade) Act 2018, Pt 13 and 4

● Taxation (Cross-border Trade) Act 2018, Sch 9, para 8(1)

● any subordinate legislation made under any provisions of the Taxation (Cross-border Trade) Act 2018, and

● Taxation (Post-transition Period) Act 2020

See: The Value Added Tax and Excise Duties (Appointed Day) (EU Exit) Regulations 2020SI 2020/1641 and the 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 2020SI 2020/1642.

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

TMT

Technology, media and telecoms—Brexit transition guidance reissued on IP completion day

At the end of the Brexit transition/implementation period at 11 pm on 31 December 2020 (IP completion day), the government reissued a number of webpages and guidance documents, collating existing stakeholder and sectoral guidance on legal and practical changes taking effect from 1 January 2021. Subjects covered include telecoms, broadcasting, eCommerce, personal data, digital services and intellectual property. The guidance within the refreshed webpages may not be new but the pages are worth noting for future reference and bookmarking. Some of the guidance contains simple updates and reference amendments to reflect the end of the transition period having occurred. Some of the guidance published on IP completion day may also contain substantive updates to reflect changes taking effect in light of the EU-UK Trade and Cooperation Agreement (and related arrangements). Further guidance may be issued after IP completion day, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/01/2021 22.

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

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 community for Lexis®PSL Brexit.

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.

Latest Q&As

● What are the key considerations for establishing whether a piece of direct EU legislation is within the scope of retained EU law?

● What is the status of EU directives in the context of retained EU law? Are there any circumstances where EU directives or provisions of directives (and associated case law) are retained?

Useful information

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

● Brexit got done: In this article, Michael Zander comments on the final ‘rushed’ stages marking the end of the Brexit transition period. See: New Law Journal 171 NLJ 7915, p11

● Legal Update Brexit/ Constitutional: In this article, Michael Zander comments on the ‘surprising harmonious’ last stages of the United Kingdom Internal Market Bill, anticipating its role ‘as a model of the important role of the Upper House in improving flawed legislation’. See: New Law Journal 171 NLJ 7915, p14

● Analysis—The EU/UK TCA: tax and customs: In this article, Timothy Lyons QC traces through a tax lens a selection of provisions under the EU-UK Trade and Cooperation Agreement, contending ‘future uncertainty is certain’. See: Tax Journal, Issue 1514, 12

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.