Brexit highlights—4 September 2020

Brexit highlights—4 September 2020

These Brexit highlights bring you a summary of the latest Brexit news and legislation updates from across a range of LexisNexis® practice areas, collated on 4 September 2020.

Brexit survey—preparing for the end of the transition period

As the summer draws to a close and the end of the Brexit transition period approaches, lawyers are starting to re-focus on what that means for legal practice. We are continuing to engage with the legal market on the key issues and priorities regarding preparations for the end of the Brexit transition and beyond. Please answer our short survey to have your say.

See: LNB News 28/08/2020 5.

General Brexit headlines

This section contains key overarching Brexit news headlines.

Brexit Bulletin—agenda for eighth round of future UK-EU relationship talks

The UK and EU have published the agenda for the eighth round of negotiations on the future UK-EU relationship, taking place in London between 8 and 10 September 2020. The next round focuses on the core areas of divergence in the talks including level playing field, horizontal arrangements and governance, fisheries, and law enforcement and judicial co-operation. It also includes sessions on trade in goods, services and investment, energy and transport, as well as sessions on mobility and social security co-ordination, and participation in EU programmes.

See: LNB News 04/09/2020 85.

Brexit Bulletin—Barnier safeguards EU principles in deadlocked future UK-EU relationship negotiations

EU chief negotiator, Michel Barnier, ‘worried and disappointed’ over the state of UK-EU future relationship negotiations, has stressed the EU ‘will not sacrifice its principles for the sole benefit of the UK’, ahead of the eighth round of talks. In a keynote address at the Institute for International and European Affairs, Barnier held the UK answerable for ‘not engaging constructively’ on level playing field, fisheries and governance—conditions for a ‘close partnership’. Urging stakeholders to ‘make no mistake’ about the ‘huge difference between a deal and a no-deal’, Barnier laid the ‘responsibility’ for compromising on the UK. A ‘legal and democratic necessity’, the end of October deadline in order to ratify and implement the new treaty entering into force on 1 January 2021 concentrates minds. Despite the deadlock, the talks resume on 8 September 2020, with negotiators on both sides still aiming to reach an agreement.

See: LNB News 02/09/2020 82.

UK-EU future relationship—can a deal be reached in time?

The UK and EU need to agree and ratify a ‘new partnership’ agreement by the end of the year, if it is to be in place for the end of the transition period. Stefano Fella, researcher in the House of Commons Library, outlines the timeline and stay of play in the UK-EU negotiations.

See News Analysis: UK-EU future relationship—can a deal be reached in time?

Brexit legislation updates

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

Government expresses commitment to transparency and scrutiny of delegated powers in Brexit legislation

The government has published its response to the House of Lords Constitution Committee’s sixth report of session 2019–2021—‘Brexit Legislation: Constitutional Issues’—on the constitutional issues and legislative challenges of delivering Brexit so far and those to come. In its response, the government appreciates the concerns surrounding the use of delegated powers, stating its commitment to maintaining high levels of transparency and scrutiny, and sets out its approach. The response also confirms that the necessity of a delegated power and its safeguards are to be judged on a case by case basis and that it is Parliament’s role to determine the level of scrutiny afforded to delegated powers. Regarding the recommendation in the report for the Procedure Committee to consider how legislative consent could be given greater prominence, the government states that this falls within the Committee’s discretion. However, the government will ‘engage constructively’ with Parliamentary Committees concerning such work.

See: LNB News 02/09/2020 71.

Committee finds Immigration and Social Security Co-ordination (EU Withdrawal) Bill of constitutional concern

The Constitution Committee has published a report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019–2021, which was found to bear ‘major constitutional importance’ and raise ‘issues of constitutional concern’—a recurring theme in the Committee’s scrutiny of Brexit legislation. According to the Committee’s 11th Report of Session 2019–21, the immigration provisions are ‘worded in vague or subjective terms’ and at ‘risk [of] making a complex area of the law even more difficult to navigate and understand for practitioners and individuals alike’. In particular, the central provisions of the Bill being delegated powers is deemed ‘constitutionally unacceptable’ as it would afford the government ‘broad and permissive powers regarding freedom of movement’. The long-standing lack of ‘sufficient justification’ for seeking broad powers relating to social security co-ordination, already holding equivalent powers through the European Union (Withdrawal) Act 2018 (EU(W)A 2018), and the ‘absence of effective inter-governmental relations and mechanisms to support them’ sparked additional criticism, with the end of the Brexit transition period rendering them ‘increasingly pressing’.

See: LNB News 03/09/2020 69.

Committee launches inquiry into Fisheries Bill

The Public Bill Committee has launched an inquiry into the Fisheries Bill 2019–2021 as it resumes its passage through Parliament. The deadline for submitting evidence is 5pm on 17 September 2020. However, when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline. Practitioners are therefore strongly advised to submit their written evidence as soon as possible.

See: LNB News 02/09/2020 56.

Lords Library updates briefing on Trade Bill

The House of Lords Library has published an updated briefing on the Trade Bill 2019–21 as it resumes its passage through Parliament. The Bill received its First Reading in the House of Lords on 21 July 2020 ahead of Parliament's adjournment for summer recess. It is currently scheduled to receive its Second Reading in the House of Lords on 8 September 2020. 

See: LNB News 28/08/2020 21.

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

Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020

SI 2020/928: This enactment is made in exercise of legislative powers under the Town and Country Planning Act 1990 in preparation for IP completion day. This enactment is made to grant temporary planning permission for development consisting of the use of land, in specified parts of England, for border processing and the associated stationing of vehicles (particularly goods vehicles) entering or leaving Great Britain, and the provision of facilities and infrastructure associated with this use. It comes into force on 24 September 2020.

See: LNB News 04/09/2020 48.

Brexit transition guidance

Brexit readiness checklist—updated Brexit transition guidance from the European Commission 

The European Commission has published updated guidance to help stakeholders prepare for the end of the transition period. The guidance includes a 'Brexit readiness checklist' for doing business with the UK from 1 January 2021, highlighting changes that will take effect when the transitional arrangements end and the UK ceases to participate in the EU Single Market and Customs Union. Subjects covered include trade in goods, chemicals, energy, provision of services, recognition of qualifications, company law, contracts, data protection and IP rights. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 28/08/2020 23.

Medicines—further Brexit transition guidance from MHRA

The Medicines and Healthcare products Regulatory Agency (MHRA) has published new guidance on medicines to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/09/2020 98.

Medical devices—further Brexit transition guidance from MHRA

The Medicines and Healthcare products Regulatory Agency (MHRA) has published new guidance on medical devices 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 01/09/2020 95.

Clinical trials—further Brexit transition guidance from MHRA

The Medicines and Healthcare products Regulatory Agency (MHRA) has published new guidance on clinical trials 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 01/09/2020 97.

Conformity assessment bodies—new Brexit transition guidance from BEIS

The Department for Business, Energy & Industrial Strategy (BEIS) has published new guidance on conformity assessment bodies to help stakeholders prepare for the end of the transition period. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/09/2020 94.

Product marking—further Brexit transition guidance from BEIS

The Department for Business, Energy & Industrial Strategy (BEIS) has published new guidance on using UK Conformity Assessed (UKCA) marking for goods being placed on the market in Great Britain to help stakeholders prepare for the end of the transition period. UKCA marking will cover most goods which previously required the CE marking. 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 01/09/2020 91.

Placing manufactured goods on the market in Great Britain and the EU—further Brexit transition guidance from BEIS

The Department for Business, Energy & Industrial Strategy (BEIS) has published new guidance on placing manufactured goods on the market in Great Britain and in the EU from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/09/2020 96.

UK REACH—updated Brexit transition guidance from Defra

The Department for Environment, Food & Rural Affairs (Defra) has published updated guidance on the UK REACH chemical regulations to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued, so stakeholders are advised to monitor these pages for updates.

See: LNB News 01/09/2020 81.

Construction products—further Brexit transition guidance from MHCLG

The Ministry of Housing, Communities & Local Government (MHCLG) has published new guidance providing practical information for placing construction products on the GB market 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 02/09/2020 7.

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

PRA sends Dear CEO letter to firms preparing for the Temporary Permissions Regime

The deputy governor for prudential regulation and CEO of the Prudential Regulation Authority (PRA), Sam Woods, has written a ‘Dear CEO’ letter to all PRA-regulated firms preparing for the end of the Brexit transition period and for entering the Temporary Permissions Regime (TPR). Woods notes that it is important that firms are operationally prepared to enter the TPR and able to meet the regulatory requirements that will apply once in it.

See: LNB News 02/09/2020 76.

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

Competition

CMA signals increased co-operation with Australia, Canada, New Zealand and US ahead of the end of the Brexit transition period

The Competition and Markets Authority (CMA) has signed a new framework with five of its international counterpart competition authorities (the Australian Competition and Consumer Commission (ACCC), the Competition Bureau of Canada (CBC), the New Zealand Commerce Commission (NZCC) and the Department of Justice (USDOJ) and Federal Trade Commission of the United States of America (USFTC)) to improve co-operation on investigations. The framework also contains a model agreement, supporting the development of individual arrangements among the participants that may include the exchange of case information and assistance in individual competition investigations, to the extent permitted by respective national laws.

See News Analysis: UK Competition law—daily round-up (02/09/2020).

Financial Services

FCA publishes Market Watch on MiFID II transaction reporting

The Financial Conduct Authority (FCA) has published Market Watch 64 on Brexit and Markets in Financial Instruments Directive (MiFID II) transaction reporting. The FCA notes that its temporary transitional power (TTP), which is intended to minimise disruption for FCA-regulated entities at the end of the Brexit transition period, will not apply in the area of MiFID II transaction reporting. Accordingly, firms and approved reporting mechanisms should comply with the changes to their regulatory obligations by the end of the transition period on 31 December 2020. The FCA also notes that its Financial Instruments Transparency System (FITRS) will be re-opened for industry testing on 5 October 2020 and its Financial Instruments Reference Data System (FIRDS) remains open for testing.

See: LNB News 27/08/2020 67.

ISDA and AFME request extension of relief for Brexit-related novations

International Swaps and Derivatives Association (ISDA) and the Association for Financial Markets in Europe (AFME) have published a letter to the European Commission and European Securities and Markets Authority (ESMA) requesting the amendment of Commission Delegated Regulation (EU) 2019/5641 and Commission Delegated Regulation (EU) 2019/5652 (the Novation RTS).

See: LNB News 28/08/2020 24.

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

Public Law

Commons Library publishes briefing on the role of the Withdrawal Agreement Joint Committee

The House of Commons Library has published a briefing, which outlines the role of the Withdrawal Agreement Joint Committee, as it oversees the implementation and application of the Withdrawal Agreement. The paper, ‘The UK-EU Withdrawal Agreement Joint Committee: functions and tasks’, sets out in a table the responsibilities to be born by the Committee, indicating whether or not they have been fulfilled. These are filtered by target date: before IP completion day, by the end of IP completion day and ongoing following IP completion day. Obligations which have been discharged are highlighted in green, while those that are still outstanding are labelled as ongoing from a particular date, not yet applicable or requiring a decision by a specific date.

See: LNB News 03/09/2020 66.

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

Latest Q&As

● What changes will need to be made to the data protection provisions in corporate precedents at the end of the Brexit implementation period?

● What do corporate lawyers need to do in order to deal with competition clearances/competition conditions (CPs) in share purchase, asset purchase and joint venture transactions with a UK nexus after the end of the Brexit implementation period?

LexTalk®Brexit: a Lexis®PSL community

Collaborate and network with a community of expert lawyers

LexTalk® is an online community forum which gives Lexis®PSL subscribers the opportunity to post questions, hold conversations, participate in discussions and share best practice. It has been designed to provide a secure place for legal professionals to discuss legal developments, offer and receive peer support, and gain a sense of up-to-date market practice and advances in real-time. You can access and post questions on all of the dedicated practice area forums, including a dedicated community for Lexis®PSL Brexit.

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.

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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.