Brexit highlights—1 May 2020

Brexit highlights—1 May 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 1 May 2020.

General Brexit headlines

This section contains key overarching Brexit news headlines.

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

We have published an update to our Brexit Bulletin—key updates, research tips and resources. The latest edition includes further commentary on the impact of coronavirus (COVID-19) on the Brexit timeline.

See: LNB News 30/04/2020 70.

Brexit Bulletin—EU calls for genuine progress in negotiations in light of UK refusal to extend transition

On 24 April 2020, following the delayed second round of talks on the future UK-EU relationship, EU Chief Negotiator Michel Barnier gave a statement. In the remarks, Mr Barnier acknowledged the grave circumstances and collective responsibility to focus on tackling the coronavirus (COVID-19) crisis. However, with the clock ticking on the Brexit transition period, and with the EU taking note of the UK's refusal to extend the timeline, tangible substantive progress is essential. The priority workstreams summarised by Mr Barnier include: ensuring full implementation of the Withdrawal Agreement, preparing for the negative economic consequences that the end of transition will entail and negotiating a future partnership agreement to limit those consequences. The EU has called for serious engagement from the UK on these parallel workstreams, based on the principles and objectives agreed in the Political Declaration.

See: LNB News 24/04/2020 74.

Brexit Bulletin—First meeting of the Specialised Committee on the Northern Ireland Protocol

On 30 April 2020, the UK and EU held the first Specialised Committee meeting on the implementation and application of the Northern Ireland Protocol under the Withdrawal Agreement, with UK and EU delegations meeting via video conference. In March 2020, the Joint Committee on the Withdrawal Agreement agreed that 'proper and timely' implementation of the Northern Ireland Protocol is a key priority. The Specialised Committee on the Protocol on Ireland/Northern Ireland is one of the six Specialised Committees established under Article 165 of the Withdrawal Agreement. It is tasked with facilitating the implementation and application of the Northern Ireland Protocol and making recommendations on its operation to the Joint Committee.

See: LNB News 30/04/2020 96.

Brexit Bulletin—UK rejects proposals for a Belfast office of the EU delegation to the UK

The Paymaster General and Cabinet Office Minister, Penny Mordaunt—in her capacity as deputy co-chair of the Joint Committee on the Withdrawal Agreement​—has written to reject EU proposals for establishing a Belfast office of the EU Delegation to the UK.

See: LNB News 27/04/2020 63.

Brexit holdups focused on level playing field, fisheries and deal format, Gove says

The level playing field, disagreements over fisheries and the format of the Brexit trade agreement are proving hard to overcome in negotiations on the future EU-UK relationship, said the UK’s domestic Brexit coordinator Michael Gove. He gave an overview of the halting progress in talks during a virtual evidence session in Parliament on 27 April 2020.

See News Analysis: Brexit holdups focused on level playing field, fisheries and deal format, Gove says.

UK stands by separate deal structure in new Brexit proposals sent to EU negotiators

UK Brexit negotiators shared new draft deals with their EU counterparts on energy, internal security and social security ahead of this week’s negotiating round on the future relationship, MLex has learned. The format of the documents suggests that the UK is continuing to push for separate deals covering various aspects of the relationship. The European Commission, meanwhile, insists on one overarching document.

See News Analysis: UK stands by separate deal structure in new Brexit proposals sent to EU negotiators.

Brexit legislation updates

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

The Fisheries Bill

In this analysis, Alice Watson, public affairs assistant at the Marine Conservation Society, discusses the Fisheries Bill and its key provisions.

See News Analysis: The Fisheries Bill.

Brexit Bulletin—European Scrutiny Committee issues report on recent draft EU legislation

On 29 April 2020, the European Scrutiny Committee published its fourth report of the 2019–21 Parliament, focusing on recent draft EU legislation. The ESC gauges the legal and political importance of each legislative document and, where appropriate, inquires further on its implications and/or recommends it for debate. Reasons identified as legally and/or politically important include application during the transition period, imminent potential divergence between the EU/Northern Ireland and Great Britain after the transition period, areas requiring particular arrangements under the future EU-UK relationship and implications for the UK's negotiation of post-Brexit FTAs.

See: LNB News 30/04/2020 91.

Brexit Bulletin—European Scrutiny Committee seeks clarity on EU legislation applicable under the Northern Ireland Protocol

In correspondence published by the European Scrutiny Committee, Cabinet Minister and Co-Chair of the Joint Committee on the Withdrawal Agreement, Michael Gove, has been asked to confirm whether the government has undertaken an audit of the legislation set out in Annex 2 of the Northern Ireland Protocol—to check for requirements to comply with EU legislation not included in the Protocol—and to share the findings. In the absence of this analysis, the Committee requests its commission, completion and communication within four weeks.

See: LNB News 27/04/2020 55.

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

Harbours and Highways (Environmental Impact Assessment) (Amendment) (EU Exit) Regulations 2020

SI 2020/460: This enactment is made in exercise of legislative powers under the European Union (Withdrawal) Act 2018 (EU(W)A 2018) in preparation for IP completion day. This enactment amends two pieces of UK primary legislation in relation to harbours and highways 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 on IP completion day.

See: LNB News 29/04/2020 8.

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2020

SI 2020/455: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment amends a Northern Ireland secondary legislation in relation to flags in order to address deficiencies arising from the withdrawal of the UK from the EU. It came into force on 25 April 2020.

See: LNB News 27/04/2020 8.

Draft Brexit SIs laid for sifting and sifting committee recommendations

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

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 outlined here. Subjects covered include changes to Office of Communications’ (OFCOM) regulatory oversight of cross-border parcel delivery services. Amendments to the Postal Services Act 2011 remove references to the Regulation (EU) 2018/644 of the European Parliament and of the Council of 18 April 2018 on cross-border parcel delivery services (which is to be revoked). The effect of these amendments is that the extension of information-gathering, enforcement and penalty powers of OFCOM to infringements of the EU Regulation will be reversed.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 27 April 2020.

Editor's picks—the practice area/sector view

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

Dispute Resolution

Lugano Convention—UK applies to accede

On 8 April 2020, the UK deposited its application to accede to the Lugano Convention with the depositary of the Federal Department of Foreign Affairs. This forms part of the UK’s preparations under Brexit to leave the EU.

For further detail on this development and its implications, see News Analysis: UK applies to accede to the Lugano Convention.

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

Energy

Nuclear cooperation emerges as small area of Brexit progress

Cooperation of civil nuclear energy has emerged as a rare area of convergence in bumpy EU-UK talks on a future trade deal during the week ending 24 April 2020, senior officials of the European Commission have said, whereas progress on climate change provisions is still lacking as positions remain too far apart. Both sides are seeking an agreement on how to facilitate the trade of civilian nuclear materials now that the UK has left Euratom (though it remains legally bound by Euratom and EU laws until the end of the transition period).

See News Analysis: Nuclear cooperation emerges as small area of Brexit progress.

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

Financial Services

BoE, PRA and FCA statements on temporary transitional powers

The Bank of England (BoE), the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) have published statements on HM Treasury’s intention to ‘shift’ regulators’ temporary transitional power (TTP) so it will be available for up to two years after the end of the transition period.

See: LNB News 30/04/2020 103.

UK Finance sets out state of play for financial services Brexit negotiations

UK Finance published an update on the UK’s Brexit planning. It notes that while the coronavirus (COVID-19) pandemic has necessitated a refocusing of government resources in recent months, there has been no indication to date that an extension of the transition period (which must be obtained by 1 July 2020) will be sought by either side. Accordingly, the scheduled milestones for 2020 remain unchanged.

See: LNB News 23/04/2020 70.

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

Immigration

Thousands of European children have not yet applied to EU Settlement Scheme

The Children’s Society has announced that thousands of European children are at risk of becoming undocumented as their application for settled status has not yet been made. A research has revealed that only 11% of the identified European children have been issued with status under the EU Settlement Scheme. European Economic Area nationals (resident in the UK before the end of the transition period (11 pm on 31 December 2020)) must apply to the Scheme by 30 June 2021 to ensure they protect their entitlements, including the right to reside post-Brexit, otherwise, they risk losing their lawful status and be ‘unable to access vital services, such as healthcare, education and benefits’. Legal guardians and council social workers of European children in care must apply to the scheme on behalf of the children.

See: LNB News 28/04/2020 39.

Brexit SI provision preventing reliance on pre-settled status to qualify for social welfare benefits is not unlawfully discriminatory

In R (on the application of Fratila) v Secretary of State for Work and Pensions (Advice on Individual Rights in Europe (AIRE) Centre intervening) [2020] EWHC 998 (Admin), the amendment made to social security rules by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019, SI 2019/872, which had the effect of preventing reliance on pre-settled status to meet the residence tests that formed a condition of entitlement to a range of social welfare benefits, did not give rise to unlawful discrimination on grounds of nationality contrary to Article 18 of the Treaty on the Functioning of the European Union. Accordingly, the Administrative Court dismissed the claimants' application for judicial review.

See: R (on the application of Fratila) v Secretary of State for Work and Pensions (Advice on Individual Rights in Europe (AIRE) Centre intervening) [2020] All ER (D) 160 (Apr).

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

Information law

Brexit—implications for personal data transfers from the UK to the EEA

Most guidance on personal data transfers and Brexit has focused on the implications for transfers from the European Economic Area (EEA) to the UK. Bridget Treacy and Olivia Lee, partner and associate at Hunton Andrews Kurth, discuss the implications of Brexit for the reverse situation: personal data transfers from the UK to the EEA during and after the Brexit implementation (or ‘transition’) period.

See News Analysis: Brexit—implications for personal data transfers from the UK to the EEA.

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

Public Law

MPs approve allowing hybrid proceedings and remote voting during coronavirus (COVID-19)

MPs returned to the Commons on 21 April 2020, and approved temporary changes to some Commons procedures in light of coronavirus (COVID-19). On 22 April 2020, MPs approved further motions regarding virtual participation in House of Commons proceedings. The temporary measures approved by MPs extend the arrangements for hybrid participation to substantive commons business, including legislation and divisions, and pave the way for electronic voting. The expectation is that the substantive business to be conducted under these procedures will be limited to government business (including Brexit legislation), though there is provision for it to be extended to backbench business, opposition days and adjournment debates, depending on the need and the technological capacity.

See: LNB News 24/04/2020 41 and LNB News 27/04/2020 14.

European Scrutiny Committee publishes further correspondence with government departments on a range of Brexit queries

In correspondence published by the European Scrutiny Committee (ESC), government departments have been asked to provide an update on aspects of the UK position post-Brexit and the future UK-EU relationship. Issues covered include EU sanctions, EU budget contributions, Passenger Name Record (PNR) data agreements, EU retaliatory duties, ​African, Caribbean and Pacific (ACP) countries' goods market access, Pan-Euro-Mediterranean (PEM) Convention participation, Intelligent Transport Systems (ITS) deployment, animal health, and fishing opportunities.

See: LNB News 28/04/2020 25.

For further updates from Public Law, see: Public Law 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.

There is also a LexTalk® community for legal practitioners to ask coronavirus (COVID-19) questions. The current trending discussions are:

• How can I keep up to date on the latest coronavirus (COVID-19) legislation?

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:

• Cover Story Commercial Property: Shutting Up Shop: In this article, Marialuisa Taddia gives a glimpse into the long term in infrastructure projects, curiously easier to predict as the coronavirus (COVID-19) pandemic has ‘simply accelerated many existing trends’ in construction, namely concerns over post-Brexit labour mobility. See: Law Society Gazette (2020) LS Gaz, 27 Apr, 18

• Labour under Keir Starmer: a reason to be cheerful? In this article, Patrick Allen marks Keir Starmer's leadership of the Labour Party as ‘the return of an effective opposition’ not least because of his forensic skills, having enabled him to masterfully use ‘parliamentary procedure to force out damaging Brexit analysis from the government’. See: New Law Journal 170 NLJ 7884, p22

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.