Brexit highlights—31 January 2020

Brexit highlights—31 January 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 31 January 2020. This special exit day edition also provides tips and analysis on the immediate considerations and priorities for lawyers, with links to essential Brexit guidance and further reading.

Exit day—what happens next?

As of 11pm on 31 January 2020 (exit day), the UK is no longer an EU Member State and will no longer participate in the political institutions and governance structures of the EU. However, in accordance with the transitional arrangements provided in Part 4 of the Withdrawal Agreement, exit day marks the commencement of an 11-month implementation period. During this period, the UK will continue to be treated by the EU as a Member State for many purposes—putting many of the legal and practical changes associated with Brexit on hold.

Under the terms of the Withdrawal Agreement, the implementation period will run from exit day until 11pm on 31 December 2020 (IP completion day). During this period, the UK must continue to adhere to its obligations under EU law (including EU treaties, legislation, principles and international agreements), and submit to the continuing jurisdiction of the Court of Justice of the European Union in accordance with the Withdrawal Agreement.

The European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020) implements the Withdrawal Agreement into UK domestic law. It amends the European Union (Withdrawal) Act 2018 (EU(W)A 2018), which made no provision for an implementation period, and includes a range of interpretation and consequential provisions in order to effect the implementation period and the associated changes in timing. IP completion day replaces exit day for many purposes throughout the EU(WA)A 2020, EU(W)A 2018 and related Brexit legislation, including specific provisions to defer the commencement of Brexit SIs and related enactments.

The UK’s withdrawal from the EU is an unprecedented process, with major long-term implications for the UK domestic legal landscape. Exit day is a key milestone in terms of being the date the UK’s EU membership and participation ends, but in terms of the legal impact, IP completion day is the date that the majority of key domestic legal changes associated with Brexit will take effect, including the full repeal of the European Communities Act 1972, incorporation of retained EU law into the domestic legal regime and commencement of associated Brexit legislation, including Brexit SIs.

For the most part, little change is expected in practice in the short-term. During the implementation period, UK nationals resident in the EU and EU citizens resident in the UK before IP completion day can enjoy largely the same rights as before exit day, and businesses can continue to trade across EU markets, while also preparing for the changes towards the end of the implementation period.

The aim is to provide a standstill period during which the UK and EU can negotiate and prepare for a new partnership agreement on the legal terms of their future relationship, and governments, businesses and individuals can avoid having to implement multiple sets of changes. The government is in the process of revising and republishing its previous Brexit guidance on this basis. The content of the guidance may or may not be new, but the revised documents focus on the transitional arrangements and preparation for changes expected to take effect on 31 January 2021.

While practitioners may not see immediate change in their practice area, particularly during the implementation period, it is important to keep up to date on key Brexit developments and the future implications for domestic and cross-border matters. To assist, our latest Brexit Bulletin provides a quick reference Brexit research aid and updating tool:

● Brexit Bulletin—key updates, research tips and resources

This Brexit Bulletin answers key questions and includes helpful updates, research tips and resources on Brexit, focussing on matters that are of general relevance to UK lawyers. It includes links to further reading materials, plus guidance on keeping up to date on key Brexit developments and the implications for UK law. Practitioners conducting legal research may wish to refer back to this material.

We will continue to monitor Brexit-related developments and keep our content under regular review throughout the implementation period. Meanwhile, for guidance on keeping up to date, including details of how to access the latest Brexit news updates and analysis, plus instructions for setting up daily/weekly alerts via email and RSS, see: How do I sign up for Brexit alerts?

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit bulletin—ratified Withdrawal Agreement published in the Official Journal

The ratified Withdrawal Agreement has been published in the Official Journal of the European Union, along with the final copy of the accompanying Political Declaration on the framework for the future relationship between the UK and the EU:

● Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.19, p 7-187

● Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.19, p 1-16

See: LNB News 31/01/2020 44.

Brexit Bulletin—Foreign Office publishes the ratified Withdrawal Agreement

The Foreign and Commonwealth Office (FCO) has published the ratified Withdrawal Agreement. Sir Tim Barrow, the UK’s Permanent Representative to the EU, deposited the instrument of ratification to the European Council ahead of its adoption (see: LNB News 30/01/2020 104). Completion of these steps, and the addition of the signed Withdrawal Agreement to the FCO Treaty Series marked the final stages in its domestic ratification ahead of the UK’s withdrawal from the EU at 11pm on 31 January 2020.

See: LNB News 30/01/2020 117.

Brexit Bulletin—examining the final preparations for exit day

As MEPs gathered in Brussels to approve the Withdrawal Agreement on 29 January 2020, the UK introduced Commencement Orders to bring into force relevant provisions of the legislation implementing and giving effect to the Withdrawal Agreement in domestic law, in preparation for exit day on 31 January 2020. Kieran Laird, partner and head of constitutional affairs in the Gowling WLG Brexit Unit, comments on the final stages of the Withdrawal Agreement ratification and the associated legislation.

See: LNB News 29/01/2020 94.

European Commission publishes exit day Q&A

The European Commission has published a Q&A factsheet on the UK’s withdrawal from the EU on 31 January 2020. It includes details on the Withdrawal Agreement and Political Declaration, the transitional arrangements, the UK’s status and continuing obligations after exit day and preparations for the formal negotiations to agree a ‘new and fair partnership’, among other topics.

See: LNB News 28/01/2020 25.

EU to unveil broad mandate for UK talks after Brexit

The EU’s draft mandate for talks with the UK on the partnership after Brexit is likely to be announced on 3 February 2020 and will allow the 27 remaining EU Member States a three-week period for comments, MLex has learned.

See News Analysis: EU to unveil broad mandate for UK talks after Brexit.

UK confirms 'agile' taskforce to run Brexit talks' second phase

The UK's next phase of Brexit talks will be run by a ‘small and agile’ unit answering to Prime Minister Boris Johnson, his office has said, confirming a long-expected realignment. Johnson, who will make a televised address on 31 January 2020, is expected to lay out the government's detailed negotiating position for the forthcoming trade and security negotiations in early February 2020.

See News Analysis: UK confirms 'agile' taskforce to run Brexit talks' second phase.

Norway, Iceland and Switzerland support UK intent to accede to Lugano Convention

The Ministry of Justice has revealed that the UK has received statements from Norway, Iceland and Switzerland supporting the UK’s intent to accede to the Lugano Convention 2007. The convention clarifies ‘which country’s courts may hear a civil or commercial cross-border dispute and ensures that the resulting judgment can be recognised and enforced across borders’. As a result, it allows all countries to avoid various court cases taking place on the same subject, thereby saving both time and expenses. The UK intends to continue to participate in the convention for the duration of the transition period. After that, the UK’s continued participation will be a subject of negotiation between the UK and the EU, Denmark, Iceland, Norway and Switzerland.

See: LNB News 28/01/2020 80.

Guy Verhofstadt hints at possible future cooperation with UK on security issues

The European Parliament has released an interview with Brexit Coordinator Guy Verhofstadt discussing future EU-UK relations. In the interview, Verhofstadt is asked questions on the protection of citizen’s rights, what future EU-UK relations would look like, as well as the role of the European Parliament in maintaining these relations with the UK. According to Verhofstadt, he hopes that future EU-UK relations can ‘go beyond a free trade agreement with the UK’, including ‘not only “zero tariffs” and “zero quotas” but also “zero dumping”’. In other words, that the UK would respect EU social and economic standards. Verhofstadt notes that if this can be achieved, then cooperation on police matters, defence, intelligence exchange and foreign affairs could also be possible.

See: LNB News 28/01/2020 12.

Legal sector calls for recognition in Brexit talks over £60bn economic contribution

The president of the Law Society of England and Wales has announced that legal services contributed nearly £60bn total gross in 2018, compared to the £5bn contribution in 2017, as per a report produced by KPMG. Law Society president, Simon Davis, has emphasised that this should highlight the value of the legal sector in the UK, and that negotiators should treat the services as a priority in upcoming Brexit talks. The report also shows that labour productivity in the legal sector has increased from £84,000 per employee in 2013, to £100,500 in 2018.

See: LNB News 23/01/2020 64.

MAC publishes its report on a Points-Based System and salary thresholds for immigration

The Migration Advisory Committee (MAC) has published its report on a Points-Based System (PBS) and salary thresholds for the skilled employment route, further to commissions from the Home Secretary, Priti Patel. These commissions were issued in order to further inform the design of the post-Brexit single immigration system, following a change of approach by the Johnson government including a renewed interest in an ‘Australian-style’ PBS. This analysis summarises the key recommendations of the report.

See News Analysis: MAC publishes its report on a Points-Based System and salary thresholds for immigration.

Committee publishes nineteenth report scrutinising Brexit-related international agreements

The House of Lords European Union Committee (EUC) has published its nineteenth report scrutinising Brexit-related treaties and international agreements. The EUC has scrutinised the ‘rollover’, ahead of Brexit, of international agreements the EU has previously agreed on the UK's behalf. The latest report considers trade agreements made between the UK and various countries in order to preserve the links established by former EU Association Agreements. It mainly concerns trade and the free movement of persons.

See: LNB News 30/01/2020 109.

Guide to UK trade agreements with non-EU countries

The Department for International Trade has released updated guidance detailing the status of trade agreements between the UK and non-EU countries. The UK will be covered by EU-third country trade agreements during the transition period, but this arrangement will no longer apply from 1 January 2021. The guide provides an outline of the trade agreements which have already been signed or are still in discussion with non-EU countries and sets out the status of mutual recognition agreements with countries such as Japan and Switzerland.

See: LNB News 30/01/2020 20.

Ministry of Justice provides advice to EU and UK lawyers on practising post-Brexit

The Ministry of Justice has provided guidance for EU and UK lawyers practising in opposing jurisdictions, as well as for legal service business owners operating in either the UK or the EU on how they should prepare for the end of the transition/implementation period. This guidance is part of a series of government guidance documents being revised and republished in preparation for Brexit. The content of the guidance may or may not be new, but the revised documents focus on the transition period.

See: LNB News 30/01/2020 86.

CMA publishes new guidance on its role post-Brexit

On 28 January 2020, the CMA published guidance to explain how Brexit affects its powers and processes for antitrust, merger control and consumer protection law enforcement during the transition period set out in the Withdrawal Agreement, towards the end of that period, and after it ends. The CMA’s guidance also explains the treatment of ‘live’ cases, which are those cases that are being reviewed by the European Commission or the CMA during and at the end of the transition period. In the short-term, however, the important takeaway from today’s guidance is that, during the transition period, the UK’s competition law regime and its relationship with the EU competition law regime will remain unchanged.

See: LNB News 28/01/2020 95.

Brexit legislation updates

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

European Union (Withdrawal Agreement) Act 2020

The EU(WA)A 2020 implements, and makes other provision in connection with, the Withdrawal Agreement between the UK and the EU negotiated under Article 50(2) TEU, which sets out the arrangements for the UK’s withdrawal from the EU. The EU(WA)A 2020 came into force partly 23 January 2020, with the remainder subject to appointment—different days may be appointed for different purposes.

See: LNB News 24/01/2020 6.

Direct Payments to Farmers (Legislative Continuity) Act 2020

The Direct Payments to Farmers (Legislative Continuity) Act 2020 makes provision for the incorporation of the Direct Payments Regulation into domestic law for enabling an increase in the total maximum amount of direct payments under that Regulation and for connected purposes. It came into force partly on 30 January 2020 and fully on exit day.

See: LNB News 31/01/2020 13.

Fisheries Bill

On 29 January 2020, the government introduced the Fisheries Bill in Parliament. The legislation intends to guarantee that the UK will leave the EU Common Fisheries Policy in December 2020 and makes provision in connection with the delivery of UK policy objectives relating to fisheries, fishing, aquaculture and marine conservation. By virtue of the Bill, the UK will become an independent coastal state and will be able to control the terms of fishing in its territorial waters. This Bill replaces the previous version introduced in the 2017–2019 Parliament, which was not carried over when Parliament was prorogued ahead of the Queen’s Speech in October 2019.

See: LNB News 29/01/2020 27 and LNB News 30/01/2020 2.

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

European Union (Withdrawal Agreement) Act 2020 (Commencement No 1) Regulations 2020

SI 2020/75: This enactment provides that certain provisions of the EU(WA)A 2020, which is the key piece of domestic legislation giving effect to the Agreement on the withdrawal of the UK of Great Britain and Northern Ireland from the EU and the European Atomic Energy Community (Withdrawal Agreement) in UK law, came into force in the UK on 30 and 31 January 2020. It came into force on 29 January 2020.

See: LNB News 29/01/2020 60.

European Union (Withdrawal) Act 2018 (Commencement No 5, Transitional Provisions and Amendment) Regulations 2020

SI 2020/74: This enactment provides that certain provisions of the EU(W)A 2018 come into force in the UK at 11pm on 31 January 2020. Amendments are made to the European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018, SI 2018/808, relating to the repeal of the European Union Act 2011, to amend the transitional provision in order to make it clear that following the repeal of the reference to EU obligations in section 30 of the Small Business, Enterprise and Employment Act 2015 the remaining reference to international obligations does not include EU obligations during the period from 4 July 2018 to IP completion day. It came into force on 29 January 2020.

See: LNB News 29/01/2020 54.

European Union (Withdrawal Agreement) Act 2020 (Disapplication of the Deferral of Subordinate Legislation) (Wales) (EU Exit) Regulations 2020

SI 2020/93: This enactment provides that EU(WA)A 2020, Sch 5 para 1(1) will not apply to the Elections (Wales) (Amendment) (EU Exit) Regulations 2019, SI 2019/115, so they will continue to come into force on exit day. It came into force on 31 January 2020.

See: LNB News 31/01/2020 14.

Value Added Tax (Miscellaneous Amendments, Revocation and Transitional Provisions) (EU Exit) Regulations 2019 (Appointed Day No 1) (EU Exit) Regulations 2020

SI 2020/87: This enactment provides that certain provisions of the Value Added Tax (Miscellaneous Amendments, Revocation and Transitional Provisions) (EU Exit) Regulations 2019, SI 2019/513, which make provision in relation to the attribution of input tax to exempt supplies in certain cases once the UK has left the EU and entered the implementation period defined in EU(W)A 2018, s 1A(6), come into force on 31 January 2020. It came into force on 30 January 2020.

See: LNB News 31/01/2020 15.

Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

SI 2020/61: This enactment amends two pieces of UK primary legislation and four pieces of UK subordinate legislation in relation to immigration in order to make provision for appeals in connection with various immigration decisions which relate to, or are connected to, leave to enter or remain in the UK granted under residence scheme immigration rules or relevant entry clearance immigration rules. ‘Residence scheme immigration rules’ and ‘relevant entry clearance immigration rules’ are defined in EU(WA)A 2020, s 17. It comes into force on exit day and EU(WA)A 2020, Sch 5 para 1(1) does not apply.

See: LNB News 30/01/2020 49.

Financial Services (Consequential Amendments) Regulations 2020

SI 2020/56: This enactment amends 12 pieces of UK secondary legislation in relation to financial services and markets to delay the application of a number of financial services temporary permissions and transitional regimes introduced in preparation for the UK leaving the EU (until IP completion day). It comes into force immediately before exit day.

See: LNB News 28/01/2020 42.

Exit day—the practice area/sector view

In this special exit day edition, Lexis®PSL lawyers consider the key exit day considerations and priorities for their own practice areas.

Arbitration

As the UK leaves the EU and enters into the implementation period, it is useful to remember that the impact of Brexit on arbitration law and practice in England and Wales is likely to be minimal with few, if any, adverse consequences for practitioners and London as a/the leading seat of international arbitration globally.

For more guidance on Brexit and arbitration, see: Brexit—arbitration law and practice in England and Wales, which will be updated in due course.

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

Banking & Finance

For banking and finance lawyers, it is largely business as usual during the implementation period—UK financial institutions are able to continue their operations in the EU and EU financial institutions will be able to continue their operations in the UK.

The financial services temporary permissions and transitional regimes have already commenced in order for the UK regulators and affected firms to begin preparing for those regimes before exit day. The Financial Services (Consequential Amendments) Regulations 2020, SI 2020/56, amend the SIs that implemented these regimes such that the relevant temporary regimes have effect by reference to IP completion day rather than exit day. All other characteristics of the regimes, such as their scope and duration, remain unchanged.

During the implementation period, UK firms will remain subject to EU legislation and guidelines, and new EU legislation that takes effect before the end of the implementation period will also apply to the UK. UK firms should therefore continue to monitor the progress of EU initiatives such as the Capital Markets Union, the Banking Union and the EU Sustainable Finance Action Plan, which the new European Commission has identified as policy priorities for 2020, along with other developments such as proposed new legislation on stablecoins.

For more information on the impact on financial services in particular, see News Analysis: The UK leaves the EU on 31 January—What does this mean for financial services?

From a documentary perspective, there should be little impact on existing documentation during the implementation period, as incorporation of retained EU law into the domestic legal regime and commencement of associated Brexit legislation, including Brexit SIs, will not occur until IP completion day. However, it may be worth checking whether the UK ceasing officially to be a Member State could have any impact on the interpretation of relevant documents. For new deals you may wish to consider whether future-proofing language is required, or would be helpful.

The possible impact of Brexit for banking and finance in the long term will depend largely on the agreement reached in relation to financial services, if any, between the EU and UK before the conclusion of the implementation period. Practice Note: Brexit—impact on finance transactions looks at the possible impact of Brexit, in particular if no agreement has been reached, while Practice Notes: Brexit—documentary implications for facility agreements and Brexit checklist—finance documents look at the possible impact on documentation.

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

Commercial

Trade in goods and services between the UK and the EU is top of the agenda for commercial lawyers post-Brexit. Although trade, theoretically, is unaffected through the implementation period, until a future trade deal between the UK and the EU is finalised, uncertainty pervades business’ trading relationships and supply chains. Many businesses will have carried out some form of contract audit prior to exit day, but for those which have not our Brexit contract management toolkit provides an overview of the key Brexit risk management considerations for contracts, and the tools for negotiating, re-negotiating, varying, assigning, novating or terminating those contracts.

Some important legislation directly relevant to commercial law stems from EU law—for example, in relation to commercial agents, product liability, consumer and public procurement, and we will continue to monitor developments in these areas through the implementation period in our Commercial—Brexit tracker.

To find out more, see: Brexit: Commercial—overview.

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

Construction

Only a small amount of legislation directly relevant to construction stems from EU law—for example in relation to construction products and public procurement (in respect of which there are no immediate plans for change). However, the real impact of Brexit has been, and will likely continue to be, on the construction industry itself, for example in relation to the availability of labour, the cost and supply of materials and the effect of currency fluctuations. In addition, uncertainty around the next stages of the Brexit process continues to hold back investment, as recently confirmed in a survey conducted by the Royal Institution of Chartered Surveyors (RICS).

The RICS has found that, although construction and infrastructure stabilised across the country in Q4 of 2019, the effects of Brexit are still impacting investment, which is being scaled back. Workloads have continued to rise rather than fall with 12% more respondents experiencing this, however this is lower than the 36% previously averaged before the referendum. Q4’s growth has been the strongest, with 17% more contributors noticing a rise in workloads. See: LNB News 23/01/2020 20.

For a selection of Brexit materials relevant to construction lawyers and their clients, see subtopic: Brexit: Construction, or visit the Construction area of the Brexit toolkit.

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

Corporate

It is not anticipated that Brexit will have any impact on UK company law during the implementation period. As to the position at the end of the implementation period, this will depend (at least in part) on the scope and content of any agreement reached by the UK and the EU as to their future relationship.

Broadly, the effect of EU company law in the UK has been to:

● create some minimum standards in company law across the EU Member States, largely through the use of EU directives, eg relating to company formation; the protection of the interests and rights of shareholders; the conduct of takeover bids for public companies; disclosure of company information; mergers and divisions; single-member private limited liability companies, and

● establish EU company law regimes and concepts that depend on reciprocity and mutual recognition between EU Member States, largely through the use of EU Regulations, eg the automatic acknowledgement of the legal status of a company incorporated in an EU Member State that has its central administration/principal place of business in another EU Member State; the cross-border merger regime; the establishment of entities that facilitate business operations across EU Member States (eg the European company); the operation of the EU business registers; the passporting of prospectuses approved in one EU Member State into other EU Member States

The EU’s company law minimum standards have been implemented in the UK principally through the Companies Act 2006 and statutory instruments made under it, which will remain the cornerstone of UK company law following the end of the implementation period. However, the EU company law regimes and concepts that depend on reciprocity and mutual recognition between EU Member States will necessarily cease to operate in the UK and for the benefit of UK companies at the end of the implementation period, unless it is agreed that they will continue to apply to the UK on the same footing as they apply to an EU Member State, notwithstanding its status as a third country.

The impact of Brexit on company law is, of course, not the only concern of corporate practitioners. We will be monitoring its effect on market activity and practice, as well as areas such as financial services, banking and tax.

To find out more, see Brexit: Corporate—overview and Practice Notes:

● The effect of Brexit on UK company law

● Brexit—UK listing and prospectus regime

● Brexit—UK takeover regime

● Brexit—UK corporate governance regime

● Brexit—accounts and reports

● Brexit—statutory audit

● Brexit—European entities

● Brexit—impact on private M&A transactions

● Brexit—impact on corporate joint ventures

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

Corporate Crime

As criminal offences in the UK are created and enacted by domestic primary or secondary legislation, many practitioners may not feel any impact of Brexit on their areas of practice. However, there are certain areas of corporate crime law and practice in which the impact of Brexit will be felt either because the manner in which the investigation of offences with EU counterparts will change or because the offences refer to standards or laws imposed by EU law. A key area impacted is cross border law enforcement and cross border judicial cooperation in criminal matters, including extradition. During the implementation period, the UK continues to benefit from the existing mechanisms and memberships in place enabling the sharing of information and intelligence gathering with other EU law enforcement agencies and European Arrest Warrants (EAWs) will continue to be available to the UK, subject to any Member States whose national law prevents them from surrendering its nationals to a non Member State. However, the position after the implementation period depends on any future agreement on criminal justice cooperation between the UK and EU as foreseen in the Political Declaration. Some steps are already being taken—eg the Extradition (Provisional Arrest) Bill, introduced to Parliament earlier this month, makes provision for the replacement of the European Arrest Warrant through the domestic enforcement of Europol red notices.

To find out more, see:

● Brexit: Corporate Crime—overview

● Brexit legislation tracker for corporate crime practitioners

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

Dispute Resolution

The issue for dispute resolution practitioners following the UK’s departure from the EU is whether, and if so how and at what stage, disputes involving an EU element will be impacted.

There are two periods of time following exit day which will generally be relevant to dispute resolution practitioners, namely: (a) the implementation period (also referred to as ‘IP’ and/or the ‘transition period’), which starts on exit day and is due to end, subject to any (unlikely) extension, at 11pm on 31 December 2020 (IP completion day); and (b) the period after IP completion day.

Due to the transition provisions, during the implementation period the UK will continue to adhere to its obligations under EU law and to submit to the jurisdiction of the Court of Justice of the European Union. This means that, during the transition period, there will generally be no change to general dispute resolution cross border issues—note, however, specific considerations may apply for specific sector industries such as intellectual property.

However, given various aspects of cross-border litigation are likely to change materially post-IP completion day, dispute resolution practitioners should consider and/or address those potentially significant implications on existing and/or anticipated proceedings during this transition period and, in any event, well in advance of IP completion day.

To assist dispute resolution practitioners in trying to navigate these complex issues and considerations, we have produced guidance on the impact on various cross-border issues both during the implementation period and in the event no deal is reached by IP completion day, all of which can be accessed from our Brexit: Dispute Resolution—overview.

For a detailed analysis of various implications for general dispute resolution of the UK’s leaving the UK, see News Analysis: Brexit—impact of exit day for dispute resolution.

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

Employment

The most important issue for employment practitioners following the UK’s departure from the EU is whether, and if so to what extent, employment rights derived from EU law (of which there are many) may be reduced. During the implementation period, the UK will continue to be bound by EU law and to submit to the jurisdiction of the Court of Justice of the European Union so it will not be possible to legislate to reduce EU workers’ rights during this period. The previous and current governments have made commitments to ensure that workers' existing EU rights are also retained after that time. However, in a key change of relevance to employment practitioners, the EU(WA)A 2020 no longer contains clauses on the protection of EU-derived workers’ rights that were included in the original European Union (Withdrawal Agreement) Bill introduced in October 2019. These provisions were removed after the general election when a revised version of the Bill was re-introduced in December 2019. For background reading, see: The new EU (Withdrawal Agreement) Bill—what’s changed?

The government has announced that protection for EU workers’ rights will be included in a forthcoming Employment Bill, but details of this Bill have yet to be published. The Employment Bill will need to be passed by the end of the implementation period in order to effectively protect workers’ rights derived from EU law.

Other issues of relevance to employment practitioners following the implementation period are:

● the new immigration system that will apply to EU workers

● the impact of Brexit on data protection, in particular on international data transfers

● how choice of law and choice of court or jurisdiction will be determined in employment disputes where there are cross-border issues

● the impact of Brexit on European Works Councils and on certain protections for employees in insolvency situations, which would require some agreement with the EU to continue in their current form

To find out more, see:

● Brexit: Employment—overview

● Brexit—implications for employment law

● Legislation tracker—Employment

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

Energy

It is widely accepted that it will remain imperative for the UK’s energy market to remain closely connected to the EU energy market post-Brexit, both physically (by way of electricity wire and gas pipeline interconnection) and in terms of the ability for UK entities to efficiently trade gas and electricity with those EU Member States. How this is to be achieved is yet to be determined and concerns have been raised as to the potential impacts on security of supply and the pace of decarbonisation. Higher bills and supply issues are part of the list of potential negative effects, as 40% of Britain’s energy consumption relies on imports of electricity mainly from France, the Netherlands and Ireland. Existing arrangements will still be maintained during a post-Brexit transition phase (see LNB News 27/01/2020 79). In the nuclear and oil and gas sectors however, there is seemingly less concern over the impact of Brexit, with the general consensus being that UK law is unlikely to change significantly.

To find out more, see:

● Brexit: Energy—overview

● Energy and Brexit—the EU Internal Energy Market and international electricity and gas interconnection regulation and trade

● Energy and Brexit—Euratom and the UK Nuclear Sector

● Energy and Brexit—renewable energy

● Energy and Brexit—UK oil and gas

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

Environment

The shape of environmental law will be heavily impacted by Brexit. Our Practice Note: Brexit—impact on environmental law sets out further detail along with some of the areas most likely to be affected, such as chemicals and emissions trading. In addition our legislation trackers cover the main Brexit SIs of interest to environmental lawyers.

The government’s flagship Environment Bill has also been re-introduced to Parliament. Presented to Parliament on 30 January 2020, the new Environment Bill replaces the previous version introduced in the 2019 Parliament following Queen’s Speech announcements on 14 October 2019 and further to EU(W)A 2018, s 16. As a consequence of the general election on 12 December 2019, Parliament was dissolved on 6 November 2019, and Bills not yet made (including the previous Environment Bill) fell away. The new government formed following the general election announced in the Queen’s Speech on 19 December 2019 that the Bill would be re-introduced to Parliament (see: LNB News 19/12/2019 23). For updates on the new Environment Bill, see: LNB News 31/01/2020 35 and LNB News 31/01/2020 6.

To find out more, see:

● Brexit: Environment—overview

● Brexit—impact on environmental law

● Brexit—guidance for businesses from IP completion day (environment)

● Brexit—LexisPSL Environment News Analysis

● The Environment Bill—snapshot

● Environment legislation tracker 2019

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

Family

In relation to family law, EU law is primarily concerned with procedure, as opposed to substantive law, which is instead determined by the relevant Member State. Numerous EU instruments are applicable to family law, but the two main EU regulations likely to be encountered by practitioners on a day-to-day basis are:

● Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis, also known as Brussels IIa), and

● Council Regulation (EC) No 4/2009 of 8 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations (EU Maintenance Regulation)

Various Brexit SIs with implications for family proceedings have been made, having been through the sifting process, including The Family Procedure Rules 2010, SI 2010/2955 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019, SI 2019/517, the purpose of which is to make amendments that will remove provision in the Family Procedure Rules 2010 (and the Court of Protection Rules 2017) relating to powers, processes and orders under EU instruments, or international agreements which will no longer be applicable or available when those instruments or agreements are revoked with effect from 31 December 2020 (IP completion day).

Family lawyers will need to have an understanding of the jurisdictional and enforcement implications of Brexit in particular when advising clients during the implementation period and the greater significance that the Hague Convention of 23 November 2007 on the International Recovery of Child Support and other forms of Family Maintenance (the 2007 Hague Convention) and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention) will have thereafter.

To find out more, see:

● Brexit: Family—overview

● Brexit and family law

● Brexit—Family Procedure Rules 2010

● Brexit—service of documents in family proceedings

● Brexit—children proceedings

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

Financial Services

EU passporting arrangements will continue to apply in the UK during the implementation period, and UK firms will remain subject to EU financial services legislation. EU regulations will continue to have direct effect in the UK, as will guidelines issued by the European Supervisory Authorities (ESAs)—the European Securities and Markets Authority (ESMA), the European Banking Authority (EBA) and the European Insurance and Occupational Pensions Authority (EIOPA).

New EU legislation that takes effect before the end of the implementation period will also apply to the UK. UK firms should therefore continue to monitor the progress of EU initiatives such as the Capital Markets Union, the Banking Union and the EU Sustainable Finance Action Plan, which the new European Commission has identified as policy priorities for 2020, along with other developments such as proposed new legislation on stablecoins. The ESAs are also scheduled to carry out substantial reviews of existing EU legislation such as MiFID II, the Market Abuse Regulation and Solvency II during 2020, though any resulting changes to legislation are unlikely to enter into force before 2021.

However, the UK government and regulators will no longer be able to participate in discussions at the European level, unless they are invited to do so. This means, for example, that the Financial Conduct Authority (FCA) will no longer be a member of ESMA’s Board of Supervisors, which makes all policy decisions on behalf of ESMA. UK institutions and regulators will therefore have limited scope to influence changes to the EU regulatory regime during the implementation period.

For more information on the impact of Brexit on financial services firms, see Practice Note: Brexit—impact on financial services and Brexit: Financial Services—overview.

HM Treasury has made more than 50 Brexit SIs under the EU(W)A 2018 to ensure there is a functioning legal and regulatory regime for financial services from exit day in all scenarios. For more information, see the Brexit—Financial Services—Statutory Instruments (SI) tracker. These SIs were originally due to commence on exit day but will now come into force on IP completion day.

However, this will not apply to a number of financial services temporary permissions and transitional regimes, which have already commenced so that the FCA, the Prudential Regulation Authority (PRA) and affected firms can begin preparing for those regimes before exit day. For example, provisions allowing EEA passporting firms to notify the regulators so that they can enter the Temporary Permissions Regime (TPR) on exit day are already in force.

The Financial Services (Consequential Amendments) Regulations 2020, SI 2020/56, were laid before Parliament on 28 January 2020. The instrument delays the application of a number of financial services temporary permissions and transitional regimes established by the Brexit SIs, so that they apply by reference to the IP completion day rather than exit day. However, the pre-exit provisions will remain in effect during the implementation period, so that the regulators and firms can continue to prepare for IP completion day.

For more information on the temporary permissions and transitional regimes, see Practice Note: Brexit and financial services—the temporary permissions regime (TPR).

If no trade agreement covering financial services is in place by IP completion date, from January 2021 the UK will trade with the EU as a third country on World Trade Organization (WTO) terms. Given that WTO rules barely cover trade in services, this would effectively mean a no-deal Brexit for financial services. For more information, see Practice Note: Brexit ‘no deal’ WTO situation—implications for Financial Services.

If the UK is treated as a third country, the EU passporting regime would no longer apply. Given that the UK and EU regulatory regimes will be closely aligned at the end of the implementation period, it is possible that the European Commission could determine that the UK regime is equivalent for the purposes of EU financial services legislation, which could give UK firms some degree of access to EU markets, though such a determination is far from certain. See Practice Note: Financial Services passporting, equivalence and the UK post-Brexit.

As a result, financial services firms will still need to have contingency plans in place to prepare for the possibility of a no-deal Brexit at the end of 2020, if the UK and the EU fail to reach a trade agreement covering financial services by that date. The risk of a no-deal Brexit will escalate if the UK and the EU have not agreed to an extension by 1 July 2020.

To find out more, see: The UK leaves the EU on 31 January—What does this mean for financial services?

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

Immigration

The EU free movement regime, implemented in the UK via the Immigration (European Economic Area) Regulations 2016 (EEA Regs 2016), SI 2016/1052, will remain in force throughout the transition period—as such EEA/Swiss nationals and their family members will continue to be able to enter and reside in the UK under EU free movement law until 11pm on 31 December 2020. This will also be the deadline for commencing residence in the UK for the purpose of most relevant applications under the EU Settlement Scheme, which is the scheme now set out in the Immigration Rules, Appendix EU and the Immigration Rules, Appendix EU (Family Permit) to protect the pre-existing rights of residence of EEA nationals and their family members under domestic immigration law, post-Brexit. Note that:

● all EEA/Swiss nationals and non-EEA nationals living in the UK and relying on EU residence rights by the December 2020 deadline will need to have applied for pre-settled or settled status by the end of June 2021, unless they are also a British citizen. Otherwise, there is a risk that they may be subject to enforcement action/‘hostile environment’ measures. The ‘citizens’ rights’ aspects of the withdrawal agreement are found in Part Two of the agreement; many of these have already been implemented in the UK via the EU Settlement Scheme. Additional aspects of the citizens’ rights provisions in the WA are being implemented via the EU(WA)A 2020, including in particular the power for a Minister of State to issue regulations which will set out appeal rights (see EU(WA)A 2020, s 11 and the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, SI 2020/61)

● those EEA/Swiss nationals (and their family members) who would arrive in the UK for the first time after 31 December 2020 (and are not otherwise eligible under the EU Settlement Scheme) will be subject to a new ‘single’ immigration system. The government is currently finalising its plans for the new system, which it has been trailing as a ‘Points-Based System’, following the Migration Advisory Committee’s latest report issued on 28 January 2020. It is anticipated that a White Paper will be published in March

As such, it will be vital for EEA/Swiss nationals to apply under the EU Settlement Scheme in good time. Employers should ensure both that their EEA/Swiss staff are fully aware of the need to register by the deadline, and that the 31 December 2020 deadline is factored into relevant future hiring plans.

To find out more, see:

● Brexit materials—citizens’ rights

● The EU Settlement Scheme—overview

● Citizens’ rights in the EU (Withdrawal Agreement) Bill

● The post-Brexit immigration system

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

Information Law

During the implementation period, the General Data Protection Regulation (GDPR), Regulation (EU) 2016/679 will continue to apply in the UK. This means that organisations that were compliant with the GDPR regime on exit day will not need to take any further action to remain compliant during the implementation period. The Information Commissioner’s Office (ICO) has issued a statement on data protection and Brexit implementation along with updated Brexit FAQs.

The ICO will continue to engage in the co-operation and consistency mechanisms under the GDPR and act as a lead supervisory authority under the GDPR during the implementation period. The ICO will lose its right to participate and vote in the European Data Protection Board (EDPB) but ICO officials may be invited in certain circumstances to attend EDPB meetings during this period where there is a specific UK interest.

There will also be no change for organisations in the application of the cybersecurity regime further to the Network and Information Systems Directive, Directive (EU) 2016/1148, the Privacy and Electronic Communications (EC Directive) Regulation 2003, SI 2003/2426, the Environmental Information Regulations 2004, SI 2004/3391 or the Freedom of Information Act 2000, as a result of exit day.

The end of the implementation period will bring more significant changes for organisations subject to EU law derived data protection and cybersecurity regimes. The implications of potential restrictions on cross-border transfers of personal data between the EU and UK are especially high on the agenda of Information Law practitioners, along with various other changes that organisations will need to consider.

To find out more, see:

● Information Law—Brexit tracker

● Brexit—implications for data protection

● Brexit—cybersecurity

● ICO counts the days until EU influence falls away

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

Insurance

UK (re)insurers and (re)insurance intermediaries in the EU will require passporting rights to arrange insurance and to pay claims. Passporting is available to EU (re)insurers and insurance intermediaries under Directive 2009/138/EC Solvency II and Directive 2016/97/EU, Insurance Distribution Directive. In order to retain EU passporting rights, a number of UK (re)insurers have established new subsidiaries/companies in the EU.

For quick guides, see the following Practice Notes:

● Impact of Brexit: Solvency II—quick guide

● Impact of Brexit: Insurance distribution-quick guide

● Impact of Brexit: Packaged retail and insurance-based investment products (PRIIPs)—quick guide

To find out more, see: Brexit—Insurance & Reinsurance—overview and for information concerning Financial Services generally, see Financial Services above.

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

IP

IP law is extensively harmonised across the EU, with a large amount of the law originating from the EU in the form of directives or regulations. For example, EU law makes it possible to obtain EU trade mark (EUTM) registrations and registered Community designs (RCDs) which offer unitary protection across all EU Member States as well as allowing for protection of unregistered Community design (UCD) rights on an equally wide basis. The UK’s decision to leave the EU means that, following IP completion day, these unitary rights will no longer extend to the UK. However, provisions negotiated in the Withdrawal Agreement and provided for in various Brexit SIs mean that the holders of such rights will automatically become the holders of comparable registrations or rights in the UK from IP completion day. In the meantime, the position will not change.

Because a substantial part of our domestic copyright law is derived from the EU copyright framework, there are references in UK law to the EU, the EEA, and Member States. Harmonised copyright provisions across the EU will, following IP completion day, result in references that are no longer appropriate and the breakdown of several cross-border mechanisms and arrangements covering areas such as cross-border portability of online content services, sui generis database rights, and copyright clearance for satellite broadcasting. The government has introduced regulations to amend inappropriate references in the Copyright Designs and Patents Act 1988 (CDPA 1988) and to resolve cross-border mechanisms and arrangements so that the UK does not give unreciprocated effect to certain mechanisms.

Copyright in databases will continue to subsist under CDPA 1988 at a UK national level. However, in line with the Database Directive (Directive 96/9/EC), UK regulations limit the ability to qualify for sui generis database right to those who are nationals of EEA states. Following IP completion day, UK citizens, residents, and businesses will no longer be eligible to receive or hold sui generis database rights in the EEA. UK database owners may find that their rights are unenforceable in the EEA and technical protection measures such as encrypting data or contractual restrictions over the use of data should be considered for protecting databases.

Patents are largely unaffected by Brexit. National patents granted by the IPO and European patents granted by the European Patent Office (EPO) and validated in the UK will continue to be in force in the UK following IP completion day. Patent applications will be made exactly as before—by filing an application directly with the IPO, by filing an application with the EPO and, on grant, requesting validation in the UK, or pursuant to an international patent application filed under the Patent Co-operation Treaty. Similarly, existing supplementary protection certificates (SPCs) will remain in effect and applications for SPCs will continue to be made in the same way—by submitting an application to the IPO. However, the relevant marketing authorisation (MA) to take into account will be an MA to place the relevant medicinal product on the market in the UK. Previously the relevant market was the EEA. Therefore, to be the subject of an SPC in the UK, a product must have a UK MA.

While the main consequences of Brexit will not take effect until IP completion day, it is important in the meantime for right holders to review their portfolios and consider whether any action needs to be taken to guard against gaps in protection, and to check that any IP agreements provide appropriate coverage.

To find out more, see:

● Brexit—IP rights

● Trade mark rights before and after Brexit—comparison table

● Design rights before and after Brexit—comparison table

● Brexit—IP audit checklist

● Intellectual property—Brexit tracker

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

Life Sciences

During the implementation period the UK is still subject to EU law and maintains access to the EU single market and customs union. This means that the regulatory frameworks for medicinal products, medical devices and clinical trials, which are based on EU law, will continue to apply in the UK. However, the UK will no longer be represented in the EU institutions, agencies and bodies (except to the limited extent agreed). Consequently, the UK ceases to participate in the European Medicines Agency (EMA) and is not entitled, for example, to ‘act as leading authority’ for certain risk assessments, examinations, approvals and authorisations with respect to medicines. Medicines and Healthcare Products Agency (MHRA) officials may, however, in certain circumstances attend EMA and EU committees’ meetings where there is a specific UK interest, but no longer have voting rights in accordance with the transitional arrangements in Part Four of the Withdrawal Agreement.

To find out more, see Practice Note: Brexit—Life Sciences

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

Local Government

For local government practitioners, exit day and the implementation period will mean waiting and watching what formal agreements are made as part of the future relationship with the EU. For the most part the impact of Brexit will be most keenly felt by those practising child protection with a cross jurisdictional element; public procurement lawyers; planning and environment specialists and those assessing entitlement to education, housing, health and social care provision, although the government has committed to preserving the rights of EU citizens with settled status at the completion of the implementation period.

Those involved in the procurement of public contracts will be interested in the transitional arrangements for public procurement set out in Part Four of the Withdrawal Agreement. See Practice Note: Brexit—the implications for public procurement.

To find out more, see:

● Local Government—Brexit tracker

● Brexit: Local Government—overview.

● Brexit—children proceedings

● Brexit—impact on environmental law

● Brexit—the implications for English and Welsh planning law and practice

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

Pensions

The impact of Brexit on pensions will be more financial than legal. Much of UK pensions law is written into UK statute. Although some areas have been influenced by EU Treaty provisions and various decisions of the EU courts, UK pensions law is mostly UK law and remains largely unchanged on 1 February 2020.

Although there are only a few areas in which legal changes affecting UK pensions might result from Brexit, pension schemes have been doing a good deal to prepare for the impact of Brexit. The economic effect on schemes’ investment assets of the uncertainty, and now the likely changes, can be significant, at least in the short term. Well-advised pension scheme trustees have been looking at their hedging position, not just in relation to investments, but also as regards the strength of the employer, having assessed the effects on both of location and risk/opportunity from Brexit.

It is also likely that the economic changes post-Brexit could present several investment opportunities. Trustees will be taking advice to ensure that they are assessing these opportunities appropriately in order to maximise potential gains for their scheme investments.

In the longer term, trustees should maintain awareness of the potential legal changes that may result from Brexit. If, for example, cross-border schemes were to become viable once more, certain schemes may wish to consider non-UK members again.

To find out more, see:

● The impact of Brexit on the UK pensions sector

● Brexit—the implications for pensions

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

Planning

Several key areas of English and Welsh planning law and practice are derived from EU directives and are regulated by legislation made pursuant to the ECA 1972. This includes the hazardous substances regime and the requirements for environmental assessment including appropriate assessment, strategic environmental assessment and environmental impact assessment. With the repeal of the ECA 1972, effective on exit day but subject to transitional arrangements until IP completion day, the government has legislated to ensure that the existing regulations governing these aspects of planning law will continue largely unchanged.

The government has also re-introduced its flagship Environment Bill, which in its current form promises to make far-reaching changes to environmental law in the UK, including where it overlaps with planning law, for example in respect of air quality and biodiversity. For updates on the new Environment Bill, see: LNB News 31/01/2020 35 and LNB News 31/01/2020 6.

To find out more, see Practice Note: Brexit—the implications for English and Welsh planning law and practice, or visit the Planning area of the Brexit toolkit.

Practice Compliance

For now at least, the conclusion of the Withdrawal Agreement means law firms’ no-deal Brexit planning can take a back seat and key areas such as data protection, AML and sanctions will carry on as usual. However, the SRA is currently saying it will not be accepting new applications for Registered European Lawyer (REL) status after 31 January 2020. It is unclear on what basis this decision has been made, or what a European lawyer wishing to work in the UK after exit day should do instead. We have raised this with the SRA and hope they will review the end date for REL applications in the light of the deferment of substantive changes to English law until the end of the implementation period.

To find out more, see

● Practice Compliance forecast—overview

● Working with European lawyers—the Registered European Lawyer (REL) regime

● Brexit—anti-money laundering and counter-terrorist financing—law firms

● Development of sanctions regime in the UK post Brexit—timeline

● Brexit—implications for data protection

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

Public Law

Brexit is a subject that has dominated public law in recent years. Public Law practitioners have been monitoring Brexit developments with interest and will be reviewing the final Withdrawal Agreement and implementing legislation in detail—in particular the consequential and transitional provisions, to assist with queries on matters of legal and statutory interpretation, as well as helping to navigate the complex legal framework established in order to give effect to Brexit.

Though exit day marks a key milestone in the Brexit process, the legislative project associated with Brexit will continue, including the passage of Brexit Bills and legislation that fell in previous Parliaments, amendments to Brexit legislation already introduced and preparation for the delayed introduction of retained EU law into the domestic legal regime. For updates, see: Brexit legislation tracker.

As part of the post-exit day reshuffle, the Department for Exiting the European Union will wind down, with responsibility for EU diplomatic engagement transferring to the Foreign and Commonwealth Office and domestic implementation of the Withdrawal Agreement sitting with the Cabinet Office. The government’s Brexit webpage has been relaunched to focus on priorities relating to implementation. The UK's Permanent Representation to the EU will become the UK Mission to the EU.

Parliamentary committees will continue their ongoing scrutiny of the domestic and international arrangements associated with Brexit, the implementation period and the future relationship with the EU and third countries. While negotiating the future UK-EU relationship, and preparing for the end of the implementation period, the government will be under pressure to be transparent, observe scrutiny procedures and consult with stakeholders including devolved administrations, overseas territories and the public.

The government has promised consultation on a range of public law issues including the implementation and interpretation of retained EU law, the role of the courts, protections for child refugees and citizens’ rights. The debate on UK-wide legislative frameworks, the future of the UK union and the devolved settlements will also continue post exit day. For background reading on some of the public law issues, see: How might Brexit impact on clients from a public law perspective?

With the UK moving into the implementation period, the transitional arrangements under Part Four of the Withdrawal Agreement will be of interest to Public Law practitioners both in general and insofar as they are relevant to specific areas of practice. A key example is the transitional arrangements for ongoing public procurement procedures.

To find out more, see:

● Brexit—introduction to the Withdrawal Agreement

● Brexit—the implications for public procurement

● What is the aim/effect of the implementation period?

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

Tax

The majority of tax practitioners will see little change after exit day. There are some tax changes that will mainly affect those practitioners who advise multinational groups with entities in the UK and EU countries or the US. Key tax changes after exit day include:

● non-EU derived domestic law in EU Member States: domestic law of some EU countries refers to EU Member States. Where this law is not derived from EU law, UK companies could lose the benefit of these provisions (an example might be where domestic law provides for tax neutral transfers of intangible or tangible assets between domestic and EU resident companies)

● US double tax treaties: Some US/EU tax treaties refer to entities in Member States being able to qualify for double taxation relief; as the UK will no longer be a Member State, entities in the UK may be excluded from this definition

● UK exports: although the UK is bound to apply EU trade agreements, third party countries are not bound to treat the UK as a member of the EU. This means that some third party countries may not apply the terms of EU trade agreements to UK exports

To find out more, see:

● Brexit—potential impact on UK tax

● Brexit—Tax—Legislation tracker

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

TMT

Data protection is high on the agenda of TMT lawyers. During the implementation period, the GDPR will continue to apply in the UK. This means that organisations that were compliant with the GDPR regime on exit day will not need to take any further action to remain compliant during the implementation period. The ICO will also continue to engage in the co-operation and consistency mechanisms under the GDPR and act as a lead supervisory authority under the GDPR during the implementation period. The ICO will lose its right to participate and vote in the EDPB but ICO officials may be invited in certain circumstances to attend EDPB meetings during this period where there is a specific UK interest.

The end of the implementation period may bring more significant changes for organisations depending on the sector in which they operate. For example, there may be restrictions on cross-border transfers of personal data between the EU and UK. In some sectors, such as telecommunications, it is expected that the regulatory regime will largely remain harmonised after the implementation period although longer-term divergence is expected.

To find out more, see:

● TMT—Brexit tracker

● Brexit—contract risk management

● Brexit—implications for data protection

Further, Brexit guidance and materials are available in Brexit toolkit.

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

Exit day—comment from MLex

With the exit door unlocked, the nature of EU membership is transformed

MLex: As the UK walks out of the EU, it will be guided by its 540–page Withdrawal Agreement. This is in essence an exit manual that means any other country leaving the bloc won’t have to take a leap in the dark, but follow a meticulously defined procedure. That presents risks, but it may yet improve the long-term health of the European project.

See News Analysis: With the exit door unlocked, the nature of EU membership is transformed.

LexTalk®Brexit: a Lexis®PSL community

Collaborate and network with a community of expert lawyers

LexTalk® is a new 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 forum for Brexit-related discussion, for users to discuss queries and sense check issues and solutions as they arise day-to-day.

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:

● 31:01:2020–the time has come: In this article, David Greene reassures that the UK's position as a primary global legal centre is not going to change with Brexit, but warns that there are some short-term challenges that we should be braced to address. See: New Law Journal 170 NLJ 7872, p7

● Opinion: State of the Union: A tale of two countries: In this article, Jonathan Goldsmith sheds light on the Brexit-inspired reconstruction of the constitution, democracy and Rights Commission. See: Law Society Gazette (2020) LS Gaz, 27 Jan, 16

● A president’s charter for change: In this article, Julian Acratopulo, the LSLA’s ‘Brexit’ President, signs off with the hope that the profession continues to work towards establishing a modern, diverse and inclusive workforce. See: New Law Journal 170 NLJ 7872, p9

● Litigation futures: strong & stable despite the Brexit effect: In this article, Grania Langdon-Down predicts the Brexit effect on the next generation of litigators. See: New Law Journal 170 NLJ 7872, p17

● To abolish or not to abolish? In this article, Andrew Hubbard and Allison Plager contemplate on the future of entrepreneurs' relief, including its place in a post-Brexit world. See: Taxation, 30 January 2020, 12

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.