Brexit highlights—11 September 2020

Brexit highlights—11 September 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 11 September 2020.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit Bulletin—future UK-EU relationship negotiations in the balance

In a familiar round of remarks, the UK and EU have reported continued deadlock on core issues following the eighth round of talks on the future UK-EU relationship. Once again, both sides reported constructive discussions and positive progress in some technical areas, but they also highlighted considerable differences on their respective red lines. EU chief negotiator, Michel Barnier, said the EU had ‘shown flexibility’ in an effort to ‘find solutions’, but the UK has ‘not engaged’ on some ‘major issues’, including level playing field, fisheries and governance. UK chief negotiator, David Frost, admitting ‘challenging areas remain and the divergences on some are still significant’, is ‘committed’ to conclude an agreement before the 15 October 2020 ‘cut-off’ point, which was set by Prime Minister, Boris Johnson. Hanging in the balance, the talks will continue from the week beginning 14 September 2020, with negotiators on both sides still aiming to reach an agreement.

See: LNB News 11/09/2020 54.

Brexit deal must be reached by 15 October 2020 or we walk away, Johnson says

Britain will walk away from negotiations on the future relationship with the EU if no deal is reached in time for the European Council meeting on 15 October 2020, UK Prime Minister, Boris Johnson has said on the eve of the eighth round of Brexit talks with the EU.

See News Analysis: Brexit deal must be reached by 15 October 2020 or we walk away, Johnson says.

Irish PM warns Withdrawal Agreement breach threatens future UK-EU relationship deal

The Irish Prime Minister, Taoiseach Micheál Martin, said on 10 September 2020 that the move by the government to override parts of the Withdrawal Agreement has eroded Ireland’s trust in the negotiations and has pushed the UK and EU closer to an exit without a future UK-EU relationship deal.

See News Analysis: Irish PM warns Withdrawal Agreement breach threatens future UK-EU relationship deal.

Do not undermine the Withdrawal Agreement, EU tells UK

The EU’s top political figures have warned the UK not to undermine the Withdrawal Agreement by overriding parts of the Northern Ireland Protocol in domestic legislation.

See News Analysis: Do not undermine the Withdrawal Agreement, EU tells UK.

Brexit Bulletin—government urged to secure Northern Ireland’s treatment in trade negotiations with the EU and US

The Chairman of the Ways and Means Committee of the United States Congress, Richard Neal, has called for negotiations on the future UK-EU relationship, as well as any UK-US FTA, to ‘preserve’ the terms of the Withdrawal Agreement, especially ‘with respect to the treatment of Northern Ireland, in accordance with international law’. As the US is ‘a guarantor of [that] historic peace accord’, the Good Friday Agreement, the Chairman ‘sincerely hopes the British government upholds the rule of law and delivers on the commitments it made during Brexit negotiations’.

See: LNB News 09/09/2020 64.

Brexit Bulletin—COREPER agrees mandate on Channel tunnel railway safety

The Council of the European Union has announced that two proposals have been adopted by the Council's Permanent Representatives Committee (COREPER) in relation to the operation of the Channel tunnel after the end of the Brexit transition period on 31 December 2020. Both proposals are aimed at maintaining a single safety authority, which could continue to apply the same set of rules over the whole infrastructure, including in its section under UK jurisdiction.

See: LNB News 09/09/2020 76.

Brexit legislation updates

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

United Kingdom Internal Market Bill introduced

On 9 September 2020, the government introduced the United Kingdom Internal Market Bill 2019–21 for its First Reading in Parliament, following the conclusion of the Department for Business, Energy and Industrial Strategy's (BEIS') consultation on proposed policy options for preserving access and regulatory harmonisation across the UK internal market. The Bill makes provision in relation to the internal market for goods and services in the UK, including provision in relation to the recognition of professional and other qualifications. It also makes provision in relation to provisions of the Northern Ireland Protocol to the Withdrawal Agreement regarding State aid and trade. The Bill additionally authorises the provision of financial assistance by Ministers of the Crown in relation to economic development, infrastructure, culture, sport and educational or training activities and exchanges. It also proposes to make regulation of the provision of distortive or harmful subsidies a reserved or excepted matter. Adam Cygan, professor at the University of Leicester, provides commentary on the Bill.

See: LNB News 09/09/2020 88LNB News 09/09/2020 7 and LNB News 10/09/2020 113.

United Kingdom Internal Market Bill permits waiving of EU State aid obligations

The United Kingdom Internal Market Bill 2019–21 by proposing changes to parts of the Withdrawal Agreement would waive the UK’s obligations to keep Northern Ireland under EU State aid rules after the end of the Brexit transition period on 31 December 2020.

See News Analysis: United Kingdom Internal Market Bill permits waiving of EU State aid obligations.

EU urges UK to withdraw United Kingdom Internal Market Bill

The European Commission has called on the government to withdraw the United Kingdom Internal Market Bill 2019–21 ‘in the shortest time possible and in any case by the end of the month’, since its adoption would ‘constitute an extremely serious violation of the Withdrawal Agreement and of international law’. In a statement, following an extraordinary meeting of the Withdrawal Agreement Joint Committee in London on 10 September 2020, European Commission Vice President, Maroš Šefčovič, warned the EU ‘will not be shy in using’ legal mechanisms enshrined in the Withdrawal Agreement, if the UK reneges on its commitments. The government has defended the introduction of the Bill, making it clear that its legislative timetable ‘would continue as planned’. With trust ‘seriously damaged’ between the UK and EU, tensions are heightened as the negotiating teams concluded the eighth round of talks on the future UK-EU relationship.

See: LNB News 10/09/2020 120.

Brexit SIs and sifting updates

This section contains updates on the latest final and draft Brexit SIs laid in Parliament, plus updates on proposed negative Brexit SIs laid for sifting.

Made Brexit SIs laid in Parliament

Customs (Bulk Customs Declaration and Miscellaneous Amendments) (EU Exit) Regulations 2020

SI 2020/967: This enactment is made in exercise of legislative powers under the Taxation (Cross-border Trade) Act 2018 in preparation for IP completion day. This enactment amends seven pieces of UK secondary legislation in relation to customs. It comes into force partly on 1 October 2020, and fully on 31 October 2020.

See: LNB News 10/09/2020 79.

Motor Vehicles (Compulsory Insurance and Rights Against Insurers) (Amendment) (EU Exit) Regulations 2020

SI 2020/945: This enactment is made in exercise of legislative powers under the EU(W)A 2018 in preparation for IP completion day. This enactment amends two pieces of UK secondary legislation in relation to motor vehicles in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It comes into force partly on immediately before IP completion day, and fully on IP completion day.

See: LNB News 08/09/2020 41.

Cleaner Road Transport Vehicles (Amendment) (EU Exit) Regulations 2020

SI 2020/964: 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 in relation to road transport vehicles 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 10/09/2020 68.

Afghanistan (Sanctions) (EU Exit) Regulations 2020

SI 2020/948: 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 amends one piece of UK secondary legislation and revokes two pieces of UK secondary legislation and one piece of retained EU legislation in relation to the sanctions regime in order to give effect to the UK’s international obligations resulting from various United Nations Security Council Resolutions imposing a sanctions regime in view of the situation in Afghanistan, including UN Security Council Resolution 2255 (2017) adopted by the Security Council on 21 December 2015 (and previously UN Security Council Resolution 1988 (2011)). It comes into force in accordance with regulations made by the Secretary of State under the SAMLA 2018, s 56.

See: LNB News 09/09/2020 47.

Sanctions (EU Exit) (Miscellaneous Amendments) (No 3) Regulations 2020

SI 2020/950: This enactment is made in exercise of legislative powers under the SAMLA 2018 in preparation for IP completion day. This enactment amends 11 pieces of UK secondary legislation in relation to the sanctions regime. It comes into force in accordance with regulations made by the Secretary of State under the SAMLA 2018, s 56.

See: LNB News 09/09/2020 50.

Sanctions (EU Exit) (Miscellaneous Amendments) (No 4) Regulations 2020

SI 2020/951: This enactment is made in exercise of legislative powers under the SAMLA 2018 in preparation for IP completion day. This enactment amends 14 pieces of UK secondary legislation in relation to the sanctions regime. It comes into force in accordance with regulations made by the Secretary of State the SAMLA 2018, s 56.

See: LNB News 09/09/2020 52.

Draft Brexit SIs laid for sifting and sifting committee recommendations

Brexit SI Bulletin—latest drafts and sifting committee reports, 11 September 2020

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 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 11 September 2020.

See News Analysis: Brexit SI Bulletin—latest drafts and sifting committee reports, 11 September 2020.

Brexit SI Bulletin—drafts laid for sifting on 8 September 2020

Public Law analysis: Under 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 covered here. Subjects covered include amendments to legislation in the field of civil aviation to correct deficiencies in related EU legislation arising as a result of the withdrawal of the UK from the EU.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 8 September 2020.

Brexit transition guidance

UK launches information campaign to prepare EU businesses for end of transition period

With the UK and EU reporting continued deadlock on core issues ahead of the eighth round of negotiations on the future UK-EU relationship, the government has launched a fresh information campaign aiming to prepare EU-based businesses for the end of the Brexit transition period on 31 December 2020. The campaign, ‘Keep Business Moving’, aims to spread awareness of the new restrictions on the movement of goods which will be introduced when the transitional arrangements under the Withdrawal Agreement come to an end and new arrangements come into effect on 1 January 2021. Meanwhile, the Department for International Trade (DIT) has also published promotional material on trading with the UK from 1 January 2021 to help prepare EU-based businesses to continue trading with the UK. The information—available in Spanish, German, Polish, Italian and French—will be complemented by government-run webinars.

See: LNB News 07/09/2020 34.

Exporting fish to the EU—further Brexit transition guidance from Defra

The Department for Environment, Food & Rural Affairs (Defra) has published new guidance on exporting fish to 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 as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 10/09/2020 85.

Marking, labelling and marketing standards—updated Brexit transition guidance from Government Digital Service and Defra

The Government Digital Service and Department for Environment, Food & Rural Affairs (Defra) have published updated guidance on marking, labelling and marketing standards to help stakeholders prepare for the end of the transition period. 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 10/09/2020 111.

Plants and plant products—Updated Brexit transition guidance from Defra and Animal and Plant Health Agency

The Department for Environment, Food & Rural Affairs and the Animal and Plant Health Agency have updated guidance plants and plant products to help stakeholders prepare for the end of the transition period. 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 10/09/2020 64.

Travelling to Europe—updated Brexit transition guidance from FCDO and HMPO

The Foreign, Commonwealth and Development Office (FCDO) has published updated guidance for UK nationals moving to or living in other European countries, specifically revising the ‘Passports and travel’ sections for each country, to help stakeholders prepare for the end of the transition period. The HM Passport Office (HMPO) has also published updated guidance on travelling to the EU after 1 January 2021. 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 07/09/2020 80 and LNB News 04/09/2020 70.

Beyond Brexit

Beyond Brexit—UK-Japan Comprehensive Economic Partnership Agreement secured

The UK-Japan Comprehensive Economic Partnership Agreement was ‘agreed in principle’ via a video conference call between International Trade Secretary, Liz Truss, and Japanese Minister for Foreign Affairs, Motegi Toshimitsu on 11 September 2020. The Department for International Trade (DIT) has announced that the agreement, which is the ‘UK’s first major trade deal as an independent trading nation’, ‘goes far beyond’ the EU-Japan Economic Partnership Agreement, as it guarantees ‘a competitive advantage’ for businesses in the manufacturing, food and drink, and tech industries. Professor Thom Brooks of Durham University and Professor Adam Cygan of Leicester University provide some commentary.

See: LNB News 11/09/2020 79.

Beyond Brexit—BEIS confirms UK will follow WTO subsidy rules post-transition period

The Department for Business, Energy and Industrial Strategy (BEIS) has confirmed that the UK will follow World Trade Organization (WTO) subsidy rules after the end of the Brexit transition period on 31 December 2020. Under the new arrangement, coming into effect on 1 January 2021, the WTO subsidy rules will replace the EU State aid laws, with the government also announcing that the UK will adhere to additional international obligations on subsidies agreed under future FTAs. Guidance for public authorities is due to be published before the end of 2020, explaining the WTO rules and any commitments on subsidies agreed under any of the UK’s independent trading relationships. Further, the government will launch a consultation ‘in the coming months’ on proposals for whether the UK should ‘go further than its international commitments’.

See: LNB News 09/09/2020 71.

Beyond Brexit—First meeting with all CPTPP members a ‘major step’ for UK trade

The Department for International Trade (DIT) has announced that the UK has taken ‘a major step’ in the process of joining the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). This is the first time the International Trade Secretary, Liz Truss, has met with negotiators from all eleven members of the Partnership to discuss potential UK accession. The DIT hopes CPTPP membership will provide ‘an opportunity to expand trade links with key partners in the Americas’. The partnership covers digital trade, data and financial, professional and business services.

See: LNB News 09/09/2020 65.

Beyond Brexit—DIT announces new Board of Trade

The Department for International Trade (DIT) has announced its new advisers to the Board of Trade, exerting free trade influence over the domestic and international stage, as the government works to establish independent trading relationships to take effect after the end of the Brexit transition period. A range of expert voices from ‘key figures’ across the political, academic and industry spectrums, will be heard to assist in the Board of Trade’s advisory function, ‘promoting free and fair trade’ and informing the ‘UK trade policy’. The extensive engagement with businesses, communities, farmers and consumer groups throughout the UK is additionally seen as a step towards encouraging ‘more businesses across the UK regions and nations to boost their international trade’.

See: LNB News 07/09/2020 53.

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.

Banking and Finance

EU-UK equivalence

For the financial services sector, Boris Johnson’s new hard line on Brexit could end hopes of equivalence arrangements between the two sides—an outcome that would leave some firms stranded without access to each other’s markets at the turn of the year.

See News Analysis: Comment—EU-UK equivalence faces death knell after Johnson’s shift.

For information on Brexit generally, see: Brexit toolkit and for information on the impact of Brexit on finance transactions and facility agreements, see Practice Notes:

• Brexit—impact on finance transactions, and

• Brexit—documentary implications for facility agreements

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

Corporate Crime

Inquiry launched into UK-Ireland cross-border criminal activity post-Brexit

The Northern Ireland Affairs Committee has launched a new inquiry that will consider the effect of Brexit on cross-border criminal activity and barriers to UK-Ireland co-operation on police, security and criminal justice. In addition, it will examine potential alternatives to EU agreements that have underpinned cross-border co-operation. The deadline for sending a written submission for the inquiry is 2 October 2020.

See: LNB News 09/09/2020 31.

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

Environment

SSF and NFFO back UK negotiating position on future UK-EU relationship

The Chief Executive of the Scottish Fishermen’s Federation (SFF), Elspeth Macdonald, and the Chief Executive of the National Federation of Fishermen’s Organisations (NFFO), Barrie Deas, have expressed their full support for the UK negotiating position on the future UK-EU relationship, ahead of the eighth round of talks beginning on 8 September 2020. In a joint statement, the Chief Executives stood firmly behind leaving the EU Common Fisheries Policy, seen as a redress to ‘woefully unfair allocation of quota shares in [UK] waters’. In line with the government’s red line on fisheries, the Chief Executives said ‘it would be preferable if the right deal could be agreed [...] but if an acceptable deal cannot be reached then the catching sector would prefer these issues to be addressed through the annual negotiations process’.

See: LNB News 07/09/2020 88.

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

Financial Services

FCA board discusses Brexit, coronavirus (COVID-19) and forthcoming Financial Services Bill

The Financial Conduct Authority (FCA) published the minutes from its 22 and 23 July 2020 board meeting. Among the issues the board discussed were the FCA’s digital strategy; the future regulatory framework and the issues associated with development of the Financial Services Bill, due to be introduced in the autumn 2020; how the coronavirus (COVID-19) pandemic may impact existing Brexit implementation plans; and the proposed approach to mortgage and consumer credit payment deferrals beyond the existing guidance.

See: LNB News 03/09/2020 39.

TheCityUK and EY urge UK to evolve trade and migration policy to benefit financial services

TheCityUK and EY have published a new report which sets out proposals for how the UK can evolve trade and migration policy to benefit the economy. The report highlights how vital this is for financial services, the UK’s largest net exporting sector.

See: LNB News 09/09/2020 74.

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

Public Law

CITMA and CIPA state only Supreme Court should depart from retained EU case law

The Chartered Institute of Trade Mark Attorneys (CITMA) and the Chartered Institute of Patent Attorneys (CIPA) have published their response to the Ministry of Justice’s consultation on the UK courts and tribunals’ departure from retained EU case law. CITMA and CIPA believe that the power to depart from retained EU case law should only be confined to the Supreme Court and should be used ‘sparingly’ rather than extended to other courts and tribunals within the UK.

See: LNB News 10/09/2020 77.

ESC issues 19th report on EU documents

The European Scrutiny Committee (ESC) has published its 19th report of session 2019–21, focusing on recently drafted EU legislation and policy documents deposited in Parliament by the government. The ESC gauges the legal and political importance of each legislative proposal and, where appropriate, inquires further on its implications and/or recommends it for debate. Reasons identified as legally and/or politically important include implications of the implementation of the Withdrawal Agreement and the Northern Ireland Protocol, relevance to the operation of the future UK-EU relationship, application of the EU's response to the coronavirus (COVID-19) pandemic, and post-Brexit policy questions concerning cross-border police co-operation. Meanwhile, in the latest correspondence published by the European Scrutiny Committee (ESC), government departments have been asked to provide an update on aspects of the UK position after IP completion day on 31 December 2020, including those arising in the context of the coronavirus pandemic. Issues covered include cross-border police co-operation, in particular the automated exchange of DNA and fingerprint data authorised by the Prüm Decisions, participation in the European Arrest Warrant, Commission Recommendation (EU) 2020/648 of 13 May 2020 on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the coronavirus pandemic, Commission Communication 'A Farm to Fork Strategy for a fair, healthy and environmentally-friendly food system' (COM(20) 8280) (41271), Commission Communication 'Data protection as a pillar of citizens' empowerment and the EU's approach to the digital transition—two years of application of the General Data Protection Regulation' (COM (20) 264) (41363), and Commission Communication: Way forward on aligning the former third pillar acquis with data protection rules (COM(20) 262) (41364).

See: LNB News 09/09/2020 58 and LNB News 08/09/2020 40.

EUC presses government for answers and engagement on key transition workstreams

The European Union Committee (EUC) has published correspondence between Parliament and government departments on a variety of Brexit queries. Correspondence includes responses from the government on queries raised in previous evidence sessions. Subjects covered include parliamentary scrutiny, implementation of the Northern Ireland Protocol and citizens’ rights. In the correspondence, the EUC seeks further clarity on government plans for updating Parliament and ensuring effective national and devolved parliamentary scrutiny of the key Brexit transition workstreams, particularly the implementation of the Northern Ireland Protocol and associated legislation. Meanwhile, EUC also published correspondence from Chair of the EUC, Lord Kinnoul, to both the Chancellor of the Duchy of Lancaster, Michael Gove MP, and Minister of State at the Northern Ireland Office, Robin Walker MP. The correspondence considers the government’s response to the EUC’s report on the Northern Ireland Protocol, and calls on further clarity from the government on the implementation of the Protocol after ‘three key issues’ remained outstanding in the government’s response. Kinnoul expresses the urgency for clarity, emphasising how there is ‘less than four months now before the Protocol becomes operational’.

See: LNB News 07/09/2020 83 and LNB News 10/09/2020 114.

Inquiry launched into implications of Northern Ireland Protocol

The Northern Ireland Affairs Committee has launched a new inquiry that is to examine the Northern Ireland Protocol and its implications on public services, trade, the economy and citizens’ rights in Northern Ireland. According to the committee, the government’s recent publication of the Internal Market Bill has in turn ensured that ‘the operation and implementation of the NI Protocol has come into sharp relief’, as the Bill ‘contains powers relating to internal UK trade that conflict with the Withdrawal Agreement and the Northern Ireland Protocol’. In addition, the inquiry intends to anticipate and react to developments in the UK-EU trade negotiations, UK politics, and in the implementation of the Protocol. The Committee is calling for any evidence on ways in which the NI Protocol will influence life in Northern Ireland. The deadline for sending written evidence is 31 December 2020.

See: LNB News 10/09/2020 76.

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

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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.