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These Brexit highlights bring you a summary of the latest Brexit news and legislation updates from across a range of LexisNexis® practice areas, collated on 7 May 2020.
This section contains key overarching Brexit news headlines.
The UK has no intention of delaying the next stage of Brexit, minister Michael Gove reiterated on 5 May 2020, saying that talks will advance because ‘deadlines concentrate minds’. Addressing lawmakers in the House of Lords, Gove said that difficulties in areas from fisheries to financial services were ‘political rather than technical in most cases’, and that a deal with the EU could be reached by the 31 December 2020 deadline.
See News Analysis: ‘Deadlines concentrate minds’, UK’s Gove says, ruling out Brexit extension.
The European Commission has published a technical note on the implementation of the Northern Ireland Protocol to the Withdrawal Agreement, issued by the Commission’s Task Force for Relations with the United Kingdom (UKTF). The technical note was sent to the European Parliament and Council on 30 April 2020 and coincided with the first meeting of the Specialised Committee on the implementation and application of the Northern Ireland Protocol, which is tasked with facilitating the implementation and application of the Protocol and making recommendations on its operation to the Withdrawal Agreement Joint Committee. In the note, the Commission repeats its calls on the UK for immediate action and engagement on the technical implementation of the Protocol, requesting details and timelines for implementation of key measures as a matter of urgency, so that stakeholders have time to prepare in advance for measures entering into force on 1 January 2021.
See: LNB News 04/05/2020 72.
Nine House of Commons Committee Chairs have written a joint letter calling for increased scrutiny of the Withdrawal Agreement Joint Committee (WAJC) and Specialised Committees. The letter, addressed to Michael Gove MP, asks that the government shares when future WAJC meetings are scheduled, including a timetable of meetings and agendas for Specialised Committees too. The letter further requests that a means for scrutiny of the implementation and application of the Northern Ireland Protocol is suggested by the government.
See: LNB News 04/05/2020 95.
On 6 May 2020, the European Scrutiny Committee (ESC) published a report having consulted a number of parliamentary Select Committees on the implications of the EU's mandate for negotiating the future UK-EU relationship on the UK's vital national interests. Prior to publishing its report, the ESC wrote to interested Select Committees seeking their input, having examined the main elements of the EU's and UK's respective negotiating positions. It consulted 24 Committees and received 23 responses. The report outlines these responses, the key issues highlighted, and the reasons for putting forward a motion for debate in the House of Commons. The motion calls for the government to conduct negotiations with the EU with the fullest possible transparency, proper parliamentary scrutiny, regular progress reports and stakeholder consultation.
See: LNB News 06/05/2020 74.
This section contains Brexit news headlines relating to Brexit-related primary legislation and legislative preparation for Brexit generally.
The Private International Law (Implementation of Agreements) Bill [HL] was introduced into the House of Lords on 28 February 2020. It is one of a number of Bills introduced under the banner of delivering Brexit. It provides a new framework for the domestic implementation of international rules relating to private international law. The Lords Constitution Committee has published a report on the Bill, highlighting a number of concerns, in particular a 'problematic tendency' of the government to seek broad powers, in this case, the power to implement international agreements via statutory instruments rather than primary legislation.
See: LNB News 04/05/2020 59.
The ESC has published its sixth report of the 2019–21 Parliament, focusing on recent draft EU legislation. The ESC gauges the legal and political importance of each legislative document and, where appropriate, inquires further on its implications and/or recommends it for debate. Reasons identified as legally and/or politically important include: application during the transition period, relevance to the future EU-UK relationship, raise of post-Brexit policy questions, effect on the continuity of trade agreements with South Korea, influence on the UK's future 'green finance' approach and relevance to the Brexit financial settlement.
See: LNB News 06/05/2020 66.
This section contains updates on the latest final and draft Brexit SIs laid in Parliament, plus updates on proposed negative Brexit SIs laid for sifting.
SI 2020/Draft: This draft enactment replaces the previous draft SI published on 22 April 2020. This draft enactment is laid in exercise of legislative powers under the European Communities Act 1972 and the European Union (Withdrawal) Act 2018 (EU(W)A 2018) in preparation for IP completion day. This draft enactment is proposed to amend 16 pieces of UK secondary legislation and five pieces of retained EU legislation, and to revoke two pieces of retained EU legislation in relation to financial services and markets in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It comes into force partly on the day after the day on which these Regulations are made and fully on IP completion day. This draft enactment was re-laid with technical corrections.
See: LNB News 06/05/2020 55.
Public Law analysis: The Commons European Statutory Instruments Committee (ESIC) and the Lords Secondary Legislation Scrutiny Committee (SLSC) are responsible for the sifting process under the EU(W)A 2018. These committees scrutinise proposed negative Brexit SIs and make recommendations on the appropriate parliamentary procedure before the instruments are laid in Parliament. This bulletin outlines the latest updates and recommendations, collated on 7 May 2020.
See News Analysis: Brexit SI Bulletin—latest drafts and sifting committee reports, 7 May 2020.
This section contains key Brexit news hand-picked by LexisPSL lawyers from their own practice areas.
Brexit Bulletin—UK and US begin negotiating Free Trade Agreement
The UK and US governments have started negotiating a UK-US Free Trade Agreement on 5 May 2020. The talks were due to start in March 2020, but similar to negotiations on the UK-EU future relationship, they were delayed due to the coronavirus (COVID-19) outbreak.
See: LNB News 05/05/2020 62.
For further updates from Commercial, see: Commercial weekly highlights—overview.
UK application to join the Lugano Convention—hedging the risk of rejection
Following the UK’s recent application to accede to the Lugano Convention, Hendrik Puschmann, partner, and Lucy Penn, associate, of Farrer & Co reflect on the application.
See News Analysis: UK application to join the Lugano Convention—hedging the risk of rejection.
For further updates from Dispute Resolution, see: Dispute Resolution weekly highlights—overview.
EAC calls for clarity on UK’s upcoming chemicals strategy amid coronavirus (COVID-19) pandemic
The Chair of the Environmental Audit Committee (EAC) has written to the Secretary of State at Defra questioning the chemicals strategy adopted by the UK and the future of chemicals regulation post-Brexit. During the two inquiries covering chemicals regulation held by the EAC since 2016, the EAC heard concerns on the government’s lack of clarity from the chemicals industry, in particular on practical regulatory steps the government intends to implement when importing from and exporting chemicals to the EU once the transition period has ended. Although the EAC has acknowledged that work on the new chemicals strategy has been put on hold due to coronavirus (COVID-19), it has called for clarity on the government plans to prepare businesses in anticipation of a new regulatory framework, and has sought guidance not only on whether the two-year window for new registrations for UK Registration, Evaluation and Authorisation of Chemicals (REACH) would be extended, but also on the level of information required to register to UK REACH.
See: LNB News 01/05/2020 76.
For further updates from Environment, see: Environment weekly highlights—overview.
Government letter provides clarity on UK-EU future financial services relationship and EMIR 2.2
The government published a letter from the economic secretary to the Treasury, John Glen, to the chair of the House of Commons European Scrutiny Committee, Sir William Cash, clarifying the government’s position on certain aspects of trade in financial services under the future UK-EU economic partnership. The letter, sent in response to a letter from the Committee, addresses UK-EU institutional arrangements on financial services, equivalence assessments and EMIR 2.2.
See: LNB News 06/05/2020 43.
HMT sets out post-transition period trade repository registration arrangements
HM Treasury published guidance setting out its intention to enable trade repositories to register with the FCA or apply in advance to operate in the UK immediately following the end of the Brexit transition period, under the UK Securities Financing Transactions Regulation (SFTR).
See: LNB News 30/04/2020 50.
Coronavirus (COVID-19)—Delfas speech on FCA’s response to pandemic and Brexit
The executive director of international at the FCA, Nausicaa Delfas, gave a speech at the Deloitte Annual Conduct Risk Conference on the FCA’s national and international response to coronavirus (COVID-19) and Brexit. Among other points, Delfas tells firms and senior managers to act appropriately and with integrity in response to the challenges of the pandemic, and to avoid a future ‘tail of misconduct’. She encourages firms to prepare for all Brexit outcomes.
See: LNB News 06/05/2020 87.
For UK financial companies, no-deal Brexit remains real possibility
For the UK financial services industry, the threat of the Brexit transition period expiring at the end of this year without a deal in place is an increasingly likely reality. Despite being in the midst of a pandemic, banks, asset managers, insurers and others are once again turning their eyes to the impact on the financial industry if no deal on the UK-EU relationship is agreed, particularly on mutual market access.
See News Analysis: Comment—For UK financial companies, no-deal Brexit remains real possibility.
For further updates from Financial Services, see: Financial Services weekly highlights—overview.
Local authorities to support care leavers’ EU settlement scheme applications
The Home Office has published guidance for local authorities on assisting looked-after children and care leavers apply to the EU settlement scheme. The information provided should explain to local authorities (in England, Scotland and Wales) and health and social care trusts (in Northern Ireland) their role in ensuring looked-after children and care leavers who are EU, EEA or Swiss citizens make an application.
See: LNB News 01/05/2020 66.
For further updates from Local Government, see: Local Government weekly highlights—overview.
Brexit Bulletin—European Scrutiny Committee publishes additional correspondence with government departments on a range of Brexit queries
In correspondence published by the ESC, government departments have been asked to provide an update on aspects of the UK position post-Brexit and the future UK-EU relationship. Issues covered include continuity of trade agreements with South Korea, EU's taxonomy for sustainable investment, amendment of the Union list of projects of common interest, and conclusion of sustainable fisheries partnership agreement and a protocol with Denmark and the Home Rule Government of Greenland.
See: LNB News 04/05/2020 79.
House of Lords publishes briefing on the ‘Beyond Brexit’ report
The House of Lords Library has published a briefing on the EU Committee report entitled ‘Beyond Brexit: How to win friends and influence people’ which was published in March 2019. The briefing provides a brief overview of the report, which will be debated on 12 May 2020, as well as steps which have taken place since its publication.
See: LNB News 07/05/2020 48.
For further updates from Public Law, see: Public Law weekly highlights—overview.
● One party is English and the other Russian. They married in Romania and then moved to a non-EU country for one party’s work, while maintaining assets in England and Romania. Can a jurisdiction clause be included in the parties’ post-nuptial agreement stating that they agree that their divorce is to be dealt with in the courts of England and Wales and/or choice of law provision for the matter to be dealt with under English law? Would the position be different once the UK is no longer subject to EU regulations (ie post-Brexit)?
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.
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Here is a sample of recent Brexit journal articles available subject to subscription:
● English law contracts, strict liability and the allocation of risk: In this article, Rafal Zakrzewski considers how the doctrine of contractual strict liability has contributed to the success of English law as a preferred choice for international commercial transactions, particularly in times of turmoil such as the present situation brought about by coronavirus (COVID-19) and Brexit. See: Journal of International Banking and Financial Law (2020) 5 JIBFL 293
● Lending against Dutch assets: a ‘safe harbour’ in turbulent times: In this article, Andrei Babiy and Ed Avens take a ‘deep dive’ into the types of security commonly taken over Dutch assets, appreciating that as the Brexit transition period draws to a close, investment opportunities in the Netherlands will come into sharper focus. See: Journal of International Banking and Financial Law (2020) 5 JIBFL 334
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