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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 14 August 2020.
Parliament has risen for the Summer recess and is due to return in September 2020, but we will continue to keep you updated on key developments.
For our report Continental Shift: Navigating the Brexit transition, we have gathered insights and commentary from a range of experts on key developments following the UK’s withdrawal from the EU, focusing on some of the frequently asked questions on the transitional arrangements and key transition workstreams including implementation of the UK-EU Withdrawal Agreement, negotiation of the future UK-EU relationship, and domestic policy, legislation and preparation for the legal landscape beyond Brexit. As part of LexisNexis’ ongoing Brexit coverage, this report provides a helpful update on the key legal and practical issues, highlighting useful information and materials to help lawyers navigate the Brexit transition and prepare for legal changes on the horizon.
See News Analysis: Continental Shift: Navigating the Brexit transition.
This section contains key overarching Brexit news headlines.
The UK and EU have published the agenda for the seventh round of negotiations on the future UK-EU relationship, taking place in London between 18 and 21 August 2020. The next round focuses on the core areas of divergence in the talks including level-playing field, horizontal arrangements and governance, law enforcement and judicial co-operation, and fisheries. It also includes sessions on trade in goods and services, transport and energy, as well as sessions on participation in EU programmes, and mobility and social security co-ordination.
See: LNB News 13/08/2020 51.
The Scottish Government has published its assessment of the UK government’s proposals for the UK internal market, outlined in the White Paper published for consultation on 16 July 2020 by the department for Department for Business, Energy and Industrial Strategy (BEIS). Describing the proposals as’neither necessary or properly thought out’, the Scottish Government’s initial response concludes that they are a ‘threat to devolution, regulatory standards, businesses and jobs’. The Scottish Government has confirmed that it will oppose any legislation brought forward in Westminster, on the basis that passage of the proposals would be to the ‘severe detriment of businesses and consumers in Scotland’. The government’s consultation closed on 13 August 2020.
See: LNB News 14/08/2020 61.
On 6 August 2020, the UK and EU held the second Specialised Committee on Citizen’s Rights meeting, with the EU and UK delegations meeting via video conference. The Committee was established by the Withdrawal Agreement and tasked with the implementation and application of the Citizens’ Rights part of the WA for UK nationals in the EU and EU citizens in the UK.
See: LNB News 06/08/2020 60.
The European Commission has proposed changes to the EU’s VAT rules to accommodate trade with Northern Ireland in preparation for IP completion day. The changes would ‘introduce a special identification number for businesses in Northern Ireland, so that EU VAT provisions can be properly applied to goods, in line with the Protocol on Ireland/Northern Ireland’. The provisions will not apply to supplies of services in Northern Ireland, which will instead be subject to UK VAT rules after IP completion day. The Commission has encouraged Member States to ‘rapidly agree to the proposal, so that it can be implemented as quickly as possible’ in time for 1 January 2021.
See: LNB News 10/08/2020 17.
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.
SI 2020/852: This enactment is made in exercise of legislative powers under the European Union (Withdrawal) Act 2018 in preparation for IP completion day. This enactment amends two pieces of UK secondary legislation in relation to product safety and metrology in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It comes into force immediately before IP completion day.
See: LNB News 13/08/2020 8.
SI 2020/849: 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 secondary legislation in relation to electricity in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It comes into force immediately before IP completion day.
See: LNB News 11/08/2020 38.
The Department for Business, Energy & Industrial Strategy (BEIS) has published updated guidance on trading gas with the EU from 1 January 2020 to help stakeholders prepare for the end of the transition period. Further new and updated guidance may be issued depending on the precise terms upon which the UK leaves the EU, so stakeholders are advised to monitor these pages for updates.
See: LNB News 10/08/2020 5.
The Department for Education (DfE) has published new guidance on access to higher education, 19+ further education and apprenticeships for UK nationals in the EEA and Switzerland 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 11/08/2020 48.
The Department for International Trade (DIT) and Trade Remedies Investigations Directorate (TRID) have published Notices of Determination on EU imposed anti-dumping duty and anti-subsidy amounts on biodiesel originating in the USA (including biodiesel consigned from Canada). Further transition reviews of EU trade remedies may be issued as part of the development of the UK’s independent trade policy, so stakeholders are advised to monitor these pages for updates.
See: LNB News 11/08/2020 62.
As negotiations on the future UK-EU relationship continue, the UK is said to be in ‘advanced stages’ of parallel negotiations with the US, following the third round of talks on the UK-US Free Trade Agreement (FTA). In this ‘constructive’ round, held on 27 July–7 August 2020, detailed ‘text-based’ discussions were covered on intellectual property and rules of origin. Meanwhile, in a series of ‘key’ meetings, International Trade Secretary, Liz Truss, and US Trade Representative, Robert Lighthizer, reviewed progress in the negotiations generally, re-affirming their mutually-shared commitment towards a ‘comprehensive and ambitious agreement’. A joint decision to postpone the Small and Medium Enterprises (SME) dialogue for Spring 2021 was also taken. The third round of talks is scheduled for early September 2020, with negotiations continuing ‘at pace’ throughout the Autumn 2020.
See: LNB News 12/08/2020 96.
US Trade Representative (USTR), Robert Lighthizer, has announced modifications to the retaliatory tariffs imposed in a long-running World Trade Organization (WTO) dispute against the EU, France, Germany, Spain, and the UK regarding illegal subsidies to the Airbus consortium. In October 2019, the WTO authorised the US to take $US 7.5bn in countermeasures. The USTR has modified the retaliatory tariffs to remove certain products from the UK and Greece from the list and add an equivalent amount of trade from France and Germany. International Trade Secretary, Liz Truss, welcomed the announcement, but also promised to step up talks with the US to remove existing tariffs ‘as soon as possible’.
See: LNB News 13/08/2020 49.
The Honourable Mary Ng, Canadian Minister of Small Business, Export Promotion and International Trade, and Liz Truss, Secretary of State for International Trade, have discussed progress toward broader cooperation as the UK prepares for life beyond Brexit. Reflecting a mutually shared ambition for a ‘solid path forward’, they consolidated their efforts toward ‘strengthening’ the UK-Canada trading relationship and ‘creating opportunities’ in the face of the coronavirus (COVID-19) pandemic, with predictability and stability being recognised as particularly important. The UK’s interest in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) was ‘welcomed’ by Ng, who anticipates the inclusion of new members that are able to meet Canada’s ‘ambitious and high-standard commitments’ and an export expansion across the Asia-Pacific region and beyond. It is hoped that Canada’s support will help to facilitate the UK’s accession to the CPTPP in due course.
See: LNB News 07/08/2020 36.
The Department for International Trade (DIT) has published a second wave of data on public attitudes towards trade and government trade policy as a part of its ‘Public attitudes to trade tracker’ collection. The survey, which collected data between 10 June 2019 and 13 August 2019, looked at how much people know about international trade, what they think free trade is, the level of support for FTAs, what people think the impacts of future FTAs will be and what people would like to prioritise in trade deals. Brexit was the dominant theme in terms of what respondents saw or heard trade related information on.
See: LNB News 10/08/2020 56.
The Institute for Government (IfG) has published a report exploring the ‘pressures the UK will come under in future’ in relation to trade and regulation after Brexit, and what it should do about them. According to the report, the government will struggle to maintain its regulatory autonomy and conduct a large number of trade agreements. It warns that the UK is ‘vulnerable’ to pressure from prospective trading partners who are likely to tell the UK to change its regulatory standards if it wants a trade deal. The IfG believes that the government ‘has made an “unforced error” in launching into complex trade negotiations before it had established a domestic regulatory approach’ and will suffer from a weakened hand in trade talks. The report, therefore, makes a number of recommendations on how the government should ‘correct’ the errors in order to maximise the benefits and minimise the costs of its regulatory trade policy.
See: LNB News 10/08/2020 4.
This section contains key Brexit news hand-picked by Lexis®PSL lawyers from their own practice areas.
FMLC publishes its response to HM Treasury consultation on transposing BRRD II
The Financial Markets Law Committee (FMLC) published its response to HM Treasury’s consultation, launched in June 2020, on the UK’s proposed approach to transposing Directive (EU) 2019/879 (BRRD II). In its response, the FMLC highlighted some issues of legal uncertainty arising from HM Treasury’s intention to diverge from EU law on those parts of BRRD II that will come into effect after the end of the Brexit implementation period.
See: LNB News 11/08/2020 66.
For further information, see: Impact of Brexit: BRRD—quick guide.
FMLC responds to MoJ consultation on departure from retained EU case law
The Financial Markets Law Committee (FMLC) wrote to the Ministry of Justice (MoJ) in response to its consultation on whether the government’s power to designate additional courts and tribunals as having the ability to depart from retained EU case law should be extended. In its response, the FMLC urges the MoJ not to extend this power but recommends that, if the ability to depart from retained EU case law is extended to the lower courts, a stricter test should be imposed than that which is currently applied by the Supreme Court.
See: LNB News 12/08/2020 74.
For further updates from Financial Services, see: Financial Services weekly highlights—overview.
Government ordered to publish equality statement on EU settlement scheme
The Joint Council for the Welfare of Immigrants (JCWI) has announced that the UK’s data watchdog has ordered the Home Office to publish a statement setting out the equality impacts of the EU settlement scheme. It follows months of pressure by the JCWI, and refusal by the government, to release a Policy Equality Statement. JCWI believes the scheme will ‘force significant numbers of EU citizens and non-EU family members out of status after the cut-off point next year’ and that ‘with so much at stake’, the Home Office should take every effort to protect people, but are instead keeping the risks ‘a secret’. The Home Office have 35 days to publish the equality statement or 28 days to appeal.
See: LNB News 06/08/2020 9.
For further updates from Public Law, see: Public Law weekly highlights—overview.
European Commission publishes text to facilitate post-Brexit Northern Ireland EU VAT identification numbers
Further to its announcement on 31 July 2020 (see: Tax weekly highlights—6 August 2020—Brexit), the European Commission has published the text which will implement changes to the EU VAT rules in order to facilitate the Northern Ireland Protocol after the end of the Brexit transition period. Under the Protocol, Northern Ireland will remain under the EU VAT legislation regarding goods with a view to avoiding a hard border between Ireland and Northern Ireland. For services, on the other hand, Northern Ireland will, together with the rest of the UK, be considered as outside the EU. This inevitably leads to a dual or mixed VAT system in Northern Ireland, whereby supplies, intra-Community acquisitions and imports of goods that are located in Northern Ireland are subject to the harmonised EU VAT rules, while supplies of services made in that same territory are not subject to the EU VAT system.
As a result, the Commission has proposed to amend Directive 2006/112/EC on the common system of VAT so that, from 1 January 2021, taxable persons carrying out Northern Ireland supplies of goods in Northern Ireland or intra-Community acquisitions of goods, as well as non-taxable legal persons carrying out intra-Community acquisitions of goods, are each identifiable for EU VAT purposes. The amendment therefore provides for a separate EU VAT identification number, granted according to the EU rules, for all taxable persons (and, where appropriate, non-taxable legal persons) involved in such transactions, being a number that is different from any UK VAT identification numbers. Once the amendments are approved, individual Member States will be required to amend their laws before 31 December 2020 in order to implement the change made by the Directive. The Commission is inviting feedback on the proposals until 6 October 2020.
See: Proposal for a Council Directive amending Directive 2006/112/EC on the common system of value added tax as regards the identification of taxable persons in Northern Ireland and Council Directive amending Directive 2006/112/EC-identification of taxable persons in Northern Ireland.
For further updates from Tax, see: Tax weekly highlights—overview.
For further updates, this section contains quick links to popular trackers and practical guidance content on Brexit:
● Brexit Bulletin—key updates, research tips and resources—this Brexit Bulletin provides a quick reference Brexit research aid and updating tool. It answers key questions on Brexit and includes helpful Brexit updates, research tips and resources
● Brexit timeline—this Practice Note tracks key events during the transition/implementation period, focussing in particular on negotiations between the UK and EU on the terms of their future relationship post-Brexit
● Brexit legislation tracker—this Practice Note tracks the progress of UK legislation introduced in connection with Brexit. It includes a Brexit SI database collating details of draft and enacted Brexit SIs, as well as draft Brexit SIs laid for sifting
● Brexit toolkit—for ease of reference, this toolkit collates practical guidance on the specific legal and practical implications of Brexit across a range of practice areas. The Brexit toolkit brings all of the core content together for ease of reference and also provides essential background information, trackers and analysis on the process of withdrawing from the EU and negotiating new trade relationships with the EU and third countries
● What volume of Brexit-related legislation is anticipated before IP completion day?
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The following recent journal articles are available subject to subscription:
● UK-EU extradition arrangements post Brexit: In this article, Kevin Roberts and Charlotte Glaser discuss the UK’s anticipated departure from the European Arrest Warrant (EAW), sounding alarm bells over placing an ‘ever-greater burden on already significantly stretched prosecuting authorities’. See: New Law Journal 170 NLJ 7899, p27
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