Brexit highlights—17 July 2020

Brexit highlights—17 July 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 17 July 2020.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit Bulletin—UK launches information campaign to prepare for end of transition period

With the UK and EU continuing to report limited progress in negotiations, the government has launched a fresh public information campaign aiming to prepare the public and businesses for the end of the Brexit transition period on 31 December 2020. The campaign aims to set out actions to ensure individuals and businesses are prepared when the transitional arrangements under the Withdrawal Agreement come to an end and new arrangements come into effect on 1 January 2021. The campaign directs businesses, organisations and individuals to the government's new 'Check, Change, Go' strapline, which includes a checker tool highlighting necessary next steps. The launch of the UK information campaign follows the European Commission's earlier communication on preparations for the end of the transition period. The EU has promised that preparatory work for the changes to cross-border exchanges between the UK and EU as of 1 January 2021 will be afforded the highest priority (irrespective of whether an agreement on the future UK-EU relationship has been concluded).

See: LNB News 13/07/2020 59 and LNB News 10/07/2020 7.

Brexit Bulletin—government publishes operating model for GB-EU border in preparation for end of transition

The government has announced a new Border Operating Model on 13 July 2020, setting out plans for customs controls and regulations to be phased in for the movement of goods between Great Britain (GB) and the EU from 1 January 2021. The government's policy paper was published following the announcement of an additional package of £705m in funding for new border infrastructure, technology and recruitment to ensure that border systems and infrastructure between GB and the EU are 'fully operational' at the end of the transition period. The policy paper and funding announcements do not cover Northern Ireland. Separate arrangements are to be put in place between Northern Ireland and the EU in accordance with the Northern Ireland Protocol, with guidance promised in the coming weeks.

See: LNB News 13/07/2020 98.

Brexit Bulletin—BEIS consults on UK-wide proposals for regulating the UK internal market

The Department for Business, Energy and Industrial Strategy (BEIS) has published a White Paper on the UK internal market in line with the government’s manifesto pledge to maintain and strengthen the integrity of the UK internal market after Brexit. Published on 16 July 2020, the White Paper sets out the government’s proposed policy options for preserving access and regulatory harmonisation across the UK internal market, to ‘protect the flow of goods and services across the UK after the end of transition period’. Central to this proposal is the introduction of a ‘Market Access Commitment’ across the UK, supported by the principles of mutual recognition and non-discrimination, and enshrined in UK law via a new Internal Market Bill, which would need to be passed by 31 December 2020. Though the government promises to respect and uphold the UK devolution settlements, its proposals for centralised UK internal market regulation have been criticised from a devolution perspective. BEIS has launched a consultation on the proposals, seeking views on the policy options and legislative proposals. The consultation closes on 13 August 2020.

See: LNB News 16/07/2020 105.

Retained EU law and lower courts—government consultation

On 2 July 2020, the Ministry of Justice published a consultation paper. It concerns the circumstances in which UK courts and tribunals might depart from retained EU case law. Graeme Cowie, researcher at the House of Commons Library, specialising in Brexit and the constitution, explains the consultation’s policy context and what its proposals could mean for UK courts after the Brexit transition period has ended.

See News Analysis: Retained EU law and lower courts—government consultation.

Home Office’s ‘Further details’ paper on new Points-Based Immigration System provides mainly technical details

The Home Office has published a paper entitled 'The UK's Points-Based Immigration System: Further Details', which adds to its February Policy Paper on the topic. It deals with the new post-Brexit immigration system which will apply both to EEA nationals who do not have or are not eligible for status under the EU Settlement Scheme, and non-EEA nationals, alike (as such, general references below to EEA nationals are to those not covered by the Scheme). Although providing a raft of additional technical details and Appendices, there only a few new policy announcements in the paper.

See News Analysis: Home Office’s ‘Further details’ paper on new Points-Based System provides mainly technical details.

Brexit legislation updates

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

Immigration and Social Security Co-ordination (EU Withdrawal) Bill briefing issued

The House of Lords Library published a briefing ahead of the Lords stages of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The Bill would give effect to the government’s policy of ending freedom of movement once the transition phase ends at the end of December 2020. It would also confirm the continued right of Irish citizens to come to and work in the UK after the ending of freedom of movement and it would provide a power to amend, via regulations, retained EU law governing social security co-ordination.

See: LNB News 13/07/2020 35.

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

Trade Remedies (Amendment) (EU Exit) (No 2) Regulations 2020

SI 2020/730: 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 three pieces of UK secondary legislation in relation to trade remedies. It comes into force on 5 August 2020.

See: LNB News 14/07/2020 59.

Climate Change Agreements, CRC Energy Efficiency Scheme and Energy Savings Opportunity Scheme (Amendment) (EU Exit) Regulations 2020

SI 2020/711: This enactment is made in exercise of legislative powers under the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020) in preparation for IP completion day. This enactment amends three pieces of UK secondary legislation in relation to climate change. It comes into force immediately before IP completion day.

See: LNB News 10/07/2020 6.

Yemen (Sanctions) (EU Exit) Regulations 2020

SI 2020/733: 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. It comes into force in accordance with regulations made by the Secretary of State under SAMLA 2018, s 56.

See: LNB News 16/07/2020 56.

Draft Brexit SIs laid in Parliament

Intellectual Property (Amendment etc) (EU Exit) Regulations 2020

SI 2020/Draft: This draft enactment is laid in exercise of legislative powers under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), the Registered Designs Act 1949, and the Trade Marks Act 1994 in preparation for IP completion day. This draft enactment is proposed to amend one piece of UK primary legislation, five pieces of UK secondary legislation and two pieces of retained EU legislation in relation to intellectual property as a consequence of the UK exiting the EU. It corrects errors in five previous Brexit SIs and amends various references to exit day so that the relevant substantive provisions in the deferred regulations take effect by reference to IP completion day instead. It comes into force partly immediately before IP completion day and fully on IP completion day.

See: LNB News 01/01/0001 2632.

Draft Brexit SIs laid for sifting and sifting committee recommendations

Brexit SI Bulletin—latest drafts and sifting committee reports, 17 July 2020

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 17 July 2020.

See: Brexit SI Bulletin—latest drafts and sifting committee reports, 17 July 2020.

Brexit SI Bulletin—drafts laid for sifting on 15 July 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 covered here. Subjects covered include amendments to legislation in the field of financial services to transpose provisions introduced by the amended Directive (EU) 2018/843 concerning money laundering and terrorist financing and address failures of related retained EU law to operate effectively following the withdrawal of the UK from the EU. Further subjects covered include amendments to legislation in the field of public procurement.

See: Brexit SI Bulletin—drafts laid for sifting on 15 July 2020.

Brexit SI Bulletin—drafts laid for sifting on 14 July 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. This update includes Brexit SIs laid for sifting on 14 July 2020. The latest draft Brexit SI laid for sifting concerns amendments to legislation on cross-border parcel delivery services. It updates an earlier draft laid for sifting on 7 July 2020.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 14 July 2020.

Brexit SI Bulletin—drafts laid for sifting on 10–13 July 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 amendments to legislation in the field of public procurement to address failures of retained EU law, regulating the environmental impact of public sector and utilities’ procurement of vehicles, to operate effectively following the withdrawal of the UK from the EU. The effect of these amendments is to ensure that the domestic legal framework that regulates relevant public procurement of vehicles continues to function effectively at the end of the transition period. Further subjects covered include quantitative restrictions and equivalent measures on imports and exports and the return of cultural objects.

See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 10–13 July 2020.

Brexit transition guidance

Import and export—Brexit transition guidance from HMRC

HM Revenue and Customs (HMRC) has published new guidance on customs declarations to help stakeholders prepare for the end of the transition period. The guidance includes updates on declarations for imports from the EU to Great Britain between 1 January and 31 June 2021. Further new and updated guidance for importers and exporters has also been published. Further new and updated guidance may be issued in future 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 10/07/2020 46 and LNB News 14/07/2020 11.

EU students—updated Brexit transition guidance from DfE

The Department for Education (DfE) has updated its guidance for EU students in the UK to state that those whose course is due to commence after 1 August 2021 will no longer be eligible for home fee status or any other financial support from Student Finance unless the student is able to benefit from the citizens rights agreements or is an Irish national living in the Republic of Ireland.

See: LNB News 14/07/2020 5.

Pensions—updated Brexit transition guidance from DWP

The Department for Work and Pensions (DWP) has updated its guidance on benefits and pensions for UK nationals in the EEA or Switzerland. The 'Moving to an EEA state or Switzerland from 1 January 2021' section has been updated.

See: LNB News 14/07/2020 17.

Plants and plant products—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 published new guidance on trading in plants and plant products 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 13/07/2020 97.

Product labelling and marketing―updated Brexit transition guidance from Defra

The Department for Environment, Food & Rural Affairs (Defra) has published updated guidance on labelling and marketing standards 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 10/07/2020 95.

Trading electricity—updated Brexit transition guidance from BEIS

The Department for Business, Energy & Industrial Strategy (BEIS) has published updated guidance for trading electricity from 1 January 2021 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 10/07/2020 88.

Beyond Brexit

UK’s first post-Brexit sanctions

On 6 July 2020, the government announced the first new sanctions under the post-Brexit legislative framework. Nearly 50 individuals and organisations, ‘involved in some of the most notorious human rights violations and abuses in recent years’, were subjected to asset freezes and travel bans. Ben Smith, researcher at the House of Commons Library, specialising in international affairs and defence, discusses the UK’s first post Brexit sanctions.

See News Analysis: UK’s first post-Brexit sanctions.

'One step closer' to UK-Australia FTA

The Department for International Trade (DIT) has issued an update on the negotiations for a UK-Australia FTA, reporting a 'productive' first round of remote talks between 29 June and 10 July 2020. Starting from a position of alignment in many areas, the expectation is for 'quick progress across many chapters', placing particular emphasis on services, digital trade and SMEs. The second round of UK-Australia talks is scheduled for September 2020, with the delegates exploring the options for face-to-face negotiations in light of coronavirus (COVID-19) developments and associated guidance on social distancing.

See: LNB News 14/07/2020 76.

Defra and DIT announce membership of the Trade and Agriculture Commission

The Department for Environment, Food & Rural Affairs has announced, in collaboration with the Department for International Trade, that retailers, farming unions, consumer, hospitality and environmental bodies have been named as members of the Trade and Agriculture Commission. The Commission will be established for six months, after which time it will submit an advisory report to the International Trade Secretary, Liz Truss, who will then present it to Parliament. The Commission will be chaired by the former Chief Executive of the Food Standards Agency, Tim Smith, and includes representatives from the English, Scottish and Welsh branches of the National Farmers Union, as well as the Ulster Farmers Union and the Farmers’ Union of Wales.

See: LNB News 10/07/2020 49.

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

European Commission updates Brexit advice for investment firms, insurance and post-trade financial services

The European Commission has published updated ‘readiness notices’ to help stakeholders in the fields of investment services (markets in financial services), insurance/reinsurance and post-trade financial services prepare for the end of the Brexit transition period.

See: LNB News 15/07/2020 10.

EPC sets out content requirements for SEPA payment instructions after Brexit implementation period ends

The European Payments Council (EPC) has published an update setting out the information that must be included in each Single Euro Payments Area (SEPA) transaction that involves a UK-based SEPA payment scheme participant and is settled after the Brexit implementation period ends. The EPC asks all payment service providers (PSPs) to implement these measures without delay ‘to ensure a continued smooth processing of cross-border SEPA payments’ after 31 December 2020.

See: LNB News 14/07/2020 93.

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

Corporate

European Commission issues notice to stakeholders on withdrawal of EU rules on statutory audit after end of transition period

Noting that it is uncertain whether an agreement will be reached on the future relationship between the EU and the UK, the notice sets out a reminder that, after the end of the transition period, EU rules in the field of statutory audit, in particular the Directive 2006/43/EC, Statutory Audit Directive, will no longer apply. The notice goes on to summarise the various consequences that would follow.

See: LNB News 14/07/2020 42.

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

Dispute Resolution

Brexit—jurisdiction and enforcement post-Brexit

As reported previously (see News Analysis: UK application to join the Lugano Convention—hedging the risk of rejection), the UK has requested to join the Lugano Convention 2007 (Lugano Convention), its preferred regime for governing questions of jurisdiction and the enforcement of judgments with EU countries post-Brexit. These rules will be critically important for all parties when they consider which jurisdiction clauses to include in their contracts. Oliver Browne, Sebastian Seelmann-Eggebert and Thomas Watret, partners and associate at Latham & Watkins LLP, explain what the Lugano Convention is, provide an update on recent developments in the accession process, and highlight some important differences between the Lugano Convention and the current regime in News Analysis: An attractive regime for governing jurisdiction post-Brexit.

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

Energy

Trading electricity—updated Brexit transition guidance from BEIS

BEIS has published updated guidance for trading electricity from 1 January 2021 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 10/07/2020 88.

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

Environment

Sub-Committee raises concerns to Defra regarding the regulation of chemicals

Chair of the EU Environment Sub-Committee, Lord Teverson, has written to the Defra Secretary of State, George Eustice, outlining its concerns regarding the government’s plans for taking on the regulation of chemicals at the end of the Brexit transition period. The Sub-Committee is concerned that the government has decided against participating in the EU system, and that other concerns have not been addressed since the EU Energy and Environment Sub-Committee published its Brexit: chemical regulation report in November 2018. In his letter, Teverson informed Eustice that the Sub-Committee will be returning to the issue in the autumn of 2020.

See: LNB News 13/07/2020 85.

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

Financial Services

European Commission updates Brexit advice for investment firms, insurance and post-trade financial services

The European Commission published updated ‘readiness notices’ to help stakeholders in the fields of investment services (markets in financial services), and insurance/reinsurance and post-trade financial services prepare for the end of the Brexit transition period.

See: LNB News 15/07/2020 10.

For further information, see: Brexit—impact on financial services.

Glen gives evidence on financial services equivalence and the UK’s future regulatory framework

The House of Lords Select Committee on the European Union published oral evidence given on 2 July 2020 by the economic secretary to the Treasury and City Minister, John Glen MP. Questions from Committee members, and Glen’s evidence, focused on financial services equivalence and the UK’s future regulatory framework for financial services.

See: LNB News 10/07/2020 50.

Source: Glen evidence to HL Select Committee on the European Union.

For further information, see: Financial Services passporting, equivalence and the UK post-Brexit.

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

Life Sciences

Government responds to supplementary protection certificate waiver consultation

The government has published its response to the consultation on the supplementary protection certificate (SPC) waiver: no-deal legislation. The consultation ran from 5 July–9 August 2019 and sought views on proposals to fix issues in SPC law in the event of a ‘no-deal’ EU exit. The government’s response sets out its intended changes to the SPC waiver legislation. The changes will ensure that the legislation continues to work as UK law after IP completion day on 31 December 2020.

See: LNB News 13/07/2020 83.

Commission, EMA and HMA issue joint note about clinical trials post-Brexit

The European Commission, European Medicines Agency and Heads of Medicines Agencies have issued a joint technical note regarding the ‘continuous compliance with the EU legislation for clinical trials’ following IP completion day. The note specifically tackles the complications arising out of Articles 13(2) and 19 of Directive 2001/20/EC, the Clinical Trials Directive. The articles stipulate that a ‘qualified person has to be established in the EU/EEA’ and that ‘the sponsor of a clinical trial or a legal representative must be established in the EU’ respectively.

See: LNB News 10/07/2020 86.

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

Local Government

Consultation launched on regulating CO2 emissions for cars and vans post-Brexit

The Department for Transport has launched a consultation on regulating CO2 emission standards for new cars and vans after the transition period ends on 31 December 2020. Views are sought on suggested implementation plans and operational procedures. The scheme will be implemented after the transition period ends. It aims to ensure continuity to the regulation of CO2 emissions from new cars and vans when they are first registered in the UK. The consultation closes at 11.59 pm on 21 August 2020.

See: LNB News 13/07/2020 48.

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

Pensions

DWP updates guidance on pensions for UK nationals in the EEA or Switzerland

The DWP has updated its guidance on benefits and pensions for UK nationals in the European Economic Area (EEA) or Switzerland, which explains the rights of UK nationals in the EEA or Switzerland to benefits and pensions from 1 February 2020. In relation to pensions for UK nationals who move to an EEA state or Switzerland from 1 January 2021, the updated guidance states that the government is seeking to maintain arrangements with the EU in some areas, but the rules will depend on the outcome of negotiations and may change. This includes counting future social security contributions in the EEA and Switzerland towards meeting UK State Pension qualifying conditions and getting the UK State Pension uprated every year in the EEA and Switzerland. However, regardless of the outcome of negotiations, UK nationals will continue to be able to claim or receive their UK State Pension in the EEA or Switzerland as long as they meet the qualifying conditions. If UK nationals have made social security contributions in an EEA state or Switzerland by 31 December 2020, they will still be able to use these to help qualify for a UK State Pension if they do not meet the minimum qualifying period.

See: LNB News 14/07/2020 17.

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

Public Law

Brexit Bulletin—ESC issues sixteenth report on EU documents

The European Scrutiny Committee (ESC) has published its sixteenth report of session 2019–21, focusing on recently drafted EU documents of significance to the UK. 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;​ implications of the EU's response to the coronavirus (COVID-19) pandemic; and post-Brexit policy questions concerning trade, climate and sustainable products. Meanwhile, in the latest correspondence published by the ESC, government departments have been asked to provide further clarity on government plans to co-operate with the EU in future, as it develops policies in the relevant areas. Subjects covered include European Commission Communications 'A New Industrial Strategy for Europe' and 'A new Circular Economy Action Plan "For a Cleaner and More Competitive Europe"'.

See: LNB News 15/07/2020 58.

Committees condemn government’s approach to Northern Ireland Protocol

The Cross-Party Northern Ireland Affairs Committee has published a report which condemns the UK government’s approach to the Northern Ireland Protocol and warns that the government’s ‘limited understanding of how business works is leaving business ill prepared’ for the end of the transition period on 31 December 2020. The Protocol allows Northern Ireland to be part of the UK’s customs territory as well as continuing to follow EU customs laws and regulations on goods, which could result in trade disruption if EU and UK laws differ. The report sets a deadline of 1 October 2020 for the government to give details of the processes and documents required for trade between Northern Ireland and Great Britain. The EUC has also criticised the Northern Ireland Office for its ‘lack of engagement’ to support the Committee’s scrutiny of the Northern Ireland Protocol. The Committee has made several requests to the Secretary of State for Northern Ireland, Brandon Lewis, to be given evidence on the engagement with the local business community. In its last letter, addressed to Lewis, the Committee has shared its concerns for ‘the shortage of time before the Protocol becomes operational’ after the end of the transition period. The Committee has reiterated its request to hear oral evidence.

See: LNB News 14/07/2020 30 and LNB News 09/07/2020 91.

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

LexTalk®Brexit: a Lexis®PSL community

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Useful information

The following recent journal articles are available subject to subscription:

● Analysis—UK/EU tax and customs negotiations: where are we now?: In this article, Timothy Lyons discusses the ‘highly sensitive’ tax and customs areas of dispute in the future UK-EU relationship negotiations, accentuating the predicament of ‘uncontrolled divergence and no agreement’. See: Tax Journal, Issue 1496, 8

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

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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.