Saturday, 9 December 2017

Brexit Briefing - November 2017

Author Furfur
Licence: Creative Commons Attribution-Share Alike 4.0 International





















Jane Lambert

As most readers of this blog already know, the British and European negotiators reached sufficient consensus on the first phase of the Brexit negotiations for the Commission to recommend to the Council to allow the negotiations to proceed to the second phase (see the Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union 8 Dec 2017 and the Communication from the Commission to the European Council on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union  8 Dec 2017).

Because those events took place yesterday I will discuss them properly in my December Brexit Briefing. All I will say now is that money was not the sticking point that many (though not I) thought it would be and that in the end the British government had to give ground on a continued role for the Court of Justice of the European Union as I had said it might in previous articles in this blog (see Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017, Has Mrs May done enough to break the Logjam? 24 Sep 2017, Fourth Round of Brexit Talks: Still a Logjam 28 Sep 2017 and Brexit Briefing - September 2017 3 Oct 2017).

Because of yesterday's agreement, other important events that took place in November have been overlooked.   Two of the saddest were the Relocation of the UK-based EU agencies 20 Nov 2017 and the termination of the selection process for the European Capital of Culture in the UK (see Jane Lambert European Capital of Culture 28 Nov 2017 NIPC Bexit).

The European Medicines Agency will move from London to Amsterdam (see the press release European Medicines Agency to be relocated to Amsterdam, the Netherlands 20 Nov 2017) and the European Banking Authority to Paris (see  press release European Banking Authority to be relocated to Paris, France 20 Nov 2017).

A letter from  Martine Reicharts, Director-General for Education, Youth, Sport and Culture to Sue Owen, our Permanent Secretary for Department for Culture, Media and Sport, brought the selection of the British city for the 2023 European Capital of Culture to a grinding halt just days before the final choice was due to be made in London,  The letter generated a lot of resentment upon which some politicians and newspapers sought to capitalize but the legislation setting out the selection procedure is very clear. It is just a shame that cities across the country had been given false hope and allowed to spend so much of their council taxpayers' money on what was clearly an impossible objective. However, it would be even more of a shame if something were not salvaged from that effort by at least an unofficial celebration of those cities' contribution to European culture.

I can see very much the same thing happening to the British government's investment in fitting out premises for the Central Division of the Court of First Instance of the Unified Patent Court in Aldgate House (see press release Intellectual Property Minister hosts reception at Aldgate Tower 18 Sept 2015). Although Jo Johnson MP, the Minister for Intellectual Property, has argued that the UPC Agreement is a free standing international agreement that stands outside the EU Treaties, it is hard to see how the UK could remain a party to that agreement after Brexit. Even if it could, it would be equally hard to reconcile participation in the Court with Mrs May's rejection of the jurisdiction of the Court of Justice of the European Union even if she has made an exception for citizens' rights.  Again rather sad in view of a report by the London School of Economics and the University of Colorado at Boulder which anticipated an increase trade and foreign direct investment in high-tech sectors by up to 2% and 15% in the EU as a result of the unitary patent, leading to annual gains of €14.6 billion in trade and €1.8 billion in foreign direct investment (see Patents, trade and foreign direct investment in the European Union Nov 2017 European Patent Office).

Also on the subject of intellectual property, the European Intellectual Property Office has published a Notice to holders of and applicants for EU trade marks and registered Community designs on the consequences of Brexit if no agreement is reached in respect of EU trade marks and Community designs in the UK.  The Notice does not take account of the government's intention to incorporate EU legislation into national law through the European Union (Withdrawal) Bill which should preserve the rights of EU trade mark and Community design proprietors in the UK after the 29 March 2019. However other rights are bound to go including the rights of representation that British lawyers and attorneys currently enjoy.

One of the arguments for Brexit during the referendum campaign was the possibility that the United Kingdom will be free to make trade agreements on its own terms with foreign governments. An early indication of the terms upon which such agreements might be made available to us came in the speech of Mr Wilbur Ross, the American Commerce  Secretary to the CBI (see #CBI2017 Blog: Wilbur Ross speaks at the CBI Annual Conference 4 Nov 2017 CBI Blog). He warned Britain to avoid signing up to “hindrances” to trade in its Brexit negotiations and that a deal with the US will require lower tariffs and compromises in areas such as food regulation. As I noted in Between Scylla and Charybdis  10 Nov 2017 NIPC Brexit, Mr Ross's speech was picked up by Monsieur Michel Garnier who expressed concern. In that article I concluded that "we can have a preferential trade deal with Trump's America on Mr Ross's terms or a preferential one with our EU partners but not both. A growing fear for British businesses must be that we may well end up with neither."

Should anyone wish to discuss this article or Brexit in general, he or she should call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

Tuesday, 28 November 2017

European Capital of Culture


Standard YouTube Licence

Jane Lambert

Living as I do just 25 miles from Leeds I was thrilled when Leeds announced its bid for European Capital of Culture for 2023. Nearly every week I attend ballet classes in the studios of Northern Ballet or contemporary classes run by Phoenix Dance Theatre in Morley Town Hall. I am often in the audience at the Grand, West Yorkshire Playhouse, the Stanley and Audrey Burton Theatre or other auditoriums in the city or nearby.

So you can imagine my disappointment when I learned about the letter from Martine Reicharts, Director-General for Education, Youth, Sport and Culture advising Sue Owen, our Permanent Secretary for Department for Culture, Media and Sport, that following our withdrawal from the European Union the participation of the United Kingdom in the European Capital of Culture would not be possible and that the selection process should be discontinued.

That letter has been represented in this country as gratuitous spitefulness on the part of the Commission upon which politicians and media favouring Brexit have sought to capitalize, but, really, Ms Reicharts's hands are tied.  The European Capital of Culture is an EU initiative established by Decision EU 445/2014/EU of the European Parliament and of the Council of 16 April 2014 establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 and repealing Decision No 1622/2006/EC. A decision is a law made by the governments of the EU member states including that of the United Kingdom and members of the European Parliament including those representing British constituencies. Not only that but a draft of the legislation was circulated to national parliaments which include the House of Commons and the House of Lords. So no politician in this country can say that we were never warned.

Eligibility for participation in the initiative is set out in art 3 (2):
"The number of cities holding the title in a given year (‘the year of the title’) shall not exceed three.
The title shall be awarded each year to a maximum of one city in each of the two Member States appearing in the calendar set out in the Annex (‘the calendar’) and, in the relevant years, to one city from a candidate country or a potential candidate, or to one city from a country that accedes to the Union in the circumstances set out in paragraph 5."
There is no provision in the legislation for participation in the initiative by a city in a country that has ceased to be a member state and one wouldn't expect it to be since this initiative is EU funded and the selection criteria include a "European dimension" (see art 5 (2)).

Ironically, there was an opportunity for the British government, British MEPs and indeed MPs and peers at Westminister to negotiate an exception that might have allowed continued British participation in the project after 2023 because the governments of the EU member states and the European Parliament changed the rules on eligibility very recently.   Art 1 (1) of Decision (EU) 2017/1545 of the European Parliament and of the Council of 13 September 2017 amending Decision No 445/2014/EU establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 (Text with EEA relevance) changed the eligibility criteria by amending art 3 (2) of Decision ni 445/2014 as follows:
"paragraph 2 is replaced by the following:
‘2. The number of cities holding the title in a given year (“the year of the title”) shall not exceed three.
The title shall be awarded each year to a maximum of one city in each of the two Member States appearing in the calendar set out in the Annex (“the calendar”) and, in the relevant years, to one city from a European Free Trade Association country which is party to the Agreement on the European Economic Area (“EFTA/EEA country”), a candidate country or a potential candidate, or to one city from a country that accedes to the Union in the circumstances set out in paragraph 5.’"
I can find no evidence that our Department for Culture, Media and Sport made any attempt to make another exception for the UK's participation in 2023.

So, like the leader of Leeds City Council, I am deeply frustrated by the termination of the selection process in the UK (see Leeds 2023 press release). However, despite the goading of sections of our media and UKIP, most Tory and many Labour politicians, my frustration is not with the Ms Reicharts or the Commission but with our Department for Culture, Media and Sport. They gave the cities false hopes in July (see the press release "It's on" 5 July 2017). They should never have allowed the process to advance this far. Above all, they should have taken steps to avoid the massive expenditure on promotion which could have been used on programmes like Young at Arts which make an enormous dfference to the lives of those who take part in it.

Can anything be done now? Well, we could revoke our notice under art 50 of the Treaty of European Union but that opposed by powerful interests.  We could try to persuade our European partners to change the rules yet again but that is hardly more realistic.  I think we should do what we can to support the arts and education in Leeds and other candidate cities so that they can enjoy as many of the benefits that would have come with the capital of culture title as possible.

Anyone wishing to call this article or Brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Friday, 10 November 2017

Between Scylla and Charybdis

Author James Gilray


















Jane Lambert

Yesterday, in my October Brexit Briefing I mentioned Charles Grant's predictions on how Brexit will unfold. One of his predictions was that there will be no bespoke trade agreement between the EU and the UK. The deal that the British government would like would be one "that provides better market access than the Canada model (a free trade agreement with only limited provisions on services) but much less than the Norway model" but that is unlikely to happen. Grant offered two reasons for that.  The first is that our government will avoid making detailed proposals for a future economic partnership because a detailed plan would be hard to get through a divided cabinet. The second is that the EU will require the British government to choose between full access to the single market on the Norwegian model, limited access on the Canadian model or no special terms at all.

On the very day that Grant's predictions were published, Michel Barnier addressed "The Obligation to Grow - Europe after Brexit" conference in Rome (see the Commission's press release Speech by Michel Barnier at the "Obbligati a crescere – l'Europa dopo Brexit" conference, Rome 9 Nov 2017), In his speech Monsieur Barnier said:
"to lay a proper basis for our future relationship, we must all understand and explain objectively what it means to leave the European Union, the single market and the customs union. These choices have consequences.
  • It is not possible to be half in and half out of the single market.
  • It is not possible to end the free movement of persons, while retaining the free movement of goods, services or capital by means of a generalised system of equivalences.
  • It is not possible to leave the single market and continue to set the rules.
  • It is not possible to leave the customs union but expect to enjoy frictionless trade with the EU."
In other words, it is not possible to have your cake and eat it.

Grant notes that "the UK is counting on the unity of the 27 fracturing. It hopes those most dependent on UK trade will see that it is in their interests to give the British a better deal than the Canadians, that is to say one with more provisions on services." Or put another way, the Germans still want to sell us their cars and the Italians their prosecco.

That may happen though there are no signs of splintering yet. Not even among the smaller states that are most dependent on British trade such as Ireland. If anything, the Irish position on the border is hardening and a resignation at least among Irish business interests that the choice on offer is a hard border or the incorporation of Northern Ireland into the single market and customs union (see IBEC's Brexit Tracker for October 2017).

Important that the British market may be for Irish and Continental exporters its importance is not paramount. What is paramount is keeping the single market intact because it is, as Monsieur Barnier put it, "our main economic asset".

Earlier in the week, Wilbur Ross, the US Trade Secretary, addressed the CBI Conference on the terms of a trade deal with the USA (see Sarah Gordon Wilbur Ross outlines US terms for post-Brexit trade deal 6 Nov 2017 Financial Times). In his speech he warned Britain to avoid signing up to “hindrances” to trade in its Brexit negotiations and that a deal with the US will require lower tariffs and compromises in areas such as food regulation.

That speech did not go unnoticed on the Continent. Monsieur Barnier referred to it specifically in the context of the possible future relationship negotiations that he may be called upon to conduct and whether it was yet another undermining factor:
"And when I hear the US Commerce Secretary Wilbur Ross, in London, call on the British to move away from Europe in order to move closer towards others – towards less environmental, health and food regulation, and no doubt financial, tax and social regulation too – I have my doubts."
It seems that we can have a preferential trade deal with Trump's America on Mr Ross's terms or a preferential one with our EU partners but not both. A growing fear for British businesses must be that we may well end up with neither.

Thursday, 9 November 2017

Brexit Briefing - October 2017

Author Furfur
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For much of the month, attention in Britain has shifted away from Brexit to domestic concerns for two reasons. First, a spate of complaints of serious misconduct by politicians on both the left and the right which resulted in the resignation of two senior ministers, the withdrawal of the whip from several more and a tragic suicide.  Secondly, a frosty but not quite frozen communiqué of the 27 remaining EU member states at their Council meeting on 20 Oct 2017 which offered the hope of negotiations on the UK's future relationship with the EU (see the Conclusions 20 Oct 2017). Thought has at last been given to the nature of that future relationship.

On the 9 Nov 2017 Charles Grant, Director of the Centre for European Reform. published his predictions on how Brexit will unfold in The Guardian (see Charles Grant How Brexit will unfold – Britain will get a deal, but it’ll come at a price The Guardian 9 Nov 2017).  In his view, there will be:
1. A deal on citizens' rights, Ireland and the divorce settlement in December 2017;
2. A hard border between the Republic of Ireland and Northern Ireland;
3. A transitional arrangement on the EU’s terms;
4. No agreement on the future relationship between the EU and the UK before the UK leaves the EU;
5. No detailed proposals from the UK on a future economic partnership;
6. No bespoke agreement for the UK;
7. Some access to the single market in some sectors;
8. No undercutting by the UK of EU regulatory standards;
9. No preferential access to the EU's financial markets for the British financial services industries; and
10. Some kind of free trade agreement between the EU and UK.

That is probably the best that can be expected from the negotiations. There are many who fear that no deal will be reached at all.  The Confederation of German Industry, the German equivalent of the CBI, has warned its members who trade with or invest in Britain to prepare for a very hard Brexit indeed (see German Industry Federation advises its Members to prepare for a Hard Brexit 5 Oct 2017). As the UK will cease to be represented by the EU in international trade negotiations, the British and EU  representatives to the World Trade Organization have indicated to the other contracting parties how they will collaborate (see UK's Future Relationship with the World Trade Organization 16 Oct 2017).

It is said that progress in the negotiations has stalled over money and that may well be the case in the short term. In the long term, however, it is likely to be the absence of a means of holding the UK to account if it refuses to acknowledge the jurisdiction of the Court of Justice of the European Union. The Institute of Government considered a number of alternatives in Some Proposals for Dispute Resolution from the Institute for Government 8 Oct 2017 none of which is entirely satisfactory. As the issue has arisen first in the protection of citizens' rights, it is worth looking at HMG's Technical Note: Citizens; Rights - Administrative Procedures in the UK. I would not be attracted by those proposals if I were a negotiator for the EU 27. I think it is overly optimistic to expect a deal by December, but we shall see.

In the meantime, if you want to discuss this article or Brexit in general, call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Monday, 16 October 2017

UK's Future Relationship with the World Trade Organization

Author E Murray
Copyright ILO Historical Photo/Archives
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Source Wikipedia


















Jane Lambert

The UK was one of the founder members of the World Trade Organization ("WTO") but its rights under the WTO Agreement and annexes are exercised, and its obligations are undertaken, on its behalf by the European Union. When the UK leaves the EU it must exercise its rights and discharge its responsibilities on its own account. Naturally, that will have repercussions for all the other member states of the WTO. By a joint letter dated 11 Oct 2017 to the Permanent Representatives to the WTO, Julian Braithwaite, UK Permanent Representative to the International Organizations in Geneva, and Marc Vanheukelen, EU Permanent Representative to the WTO, have set out their intentions with regard to the implications of the UK withdrawal from the EU within the WTO.

The letter states that the UK intends to replicate as far as possible its obligations under the current commitments of the EU. The EU and UK will follow a cooperative and transparent approach regarding any necessary adjustment in the WTO arising from the UK withdrawal from the EU and they will strive to minimize disruption to trade. Both the UK and EU UK intends to replicate as far as possible its obligations under the current commitments of the EU. The EU and the UK will follow a cooperative and transparent approach regarding any necessary adjustment in the WTO arising from the UK withdrawal from the EU.

Initially, the UK will continue the same policies as those of the EU with regard to market access, agricultural support, government procurement and trade and development.  It will continue to engage with the EU "in a spirit of cooperation, inclusiveness and openness on these matters over the course of the coming weeks and months."

This is an important document because the WTO Agreement and its annexes may be the only international agreement binding the UK to our neighbours when the EU treaties cease to apply to us in March 2019 pursuant to art 50 (3) of the Treaty of European Union. Interestingly, I found it not on the website of the Department for Exiting the EU, nor on any other British government website but on that of the Commission's task force on art 50.

Should anyone wish to discuss this letter or Brexit generally, call me on 020 7404 5252 during office hours or send me a message through my contact form.

Sunday, 8 October 2017

Some Proposals for Dispute Resolution from the Institute for Government





















Jane Lambert

Last week I reported that the German equivalent of the CBI had warned its members with business or investments in the United Kingdom to prepare for a very hard Brexit (see German Industry Federation advises its Members to prepare for a Hard Brexit 6 Oct 2017). As I have said before, the problem is how to guarantee British performance of the UK's obligations under any withdrawal treaty (see Dispute Resolution: A Potential Deal Breaker8 Aug 2017, Has Mrs May done enough to break the Logjam? 24 Sep 2017, Fourth Round of Brexit Talks: Still a Logjam 28 Sep 2017 and Brexit Briefing - September 2017 3 Oct 2017).

The performance of the other member states would be policed by the Court of Justice of the European Union. We are not prepared to accept that while the governments of the remaining member states cannot be expected to accept anything less. Until we have resolved that question there really is very little point in discussing anything else. Thus, a "good deal" or indeed any kind of deal with Europe other than those that exist under multilateral agreements just cannot happen. That is why the BDI is warning its members to prepare for a hard Brexit and indeed why my professional body is advising me to do the same (see German Industry Federation advises its Members to prepare for a Hard Brexit supra).

There does not need to be a breakdown of talks. I am sure that the present and any successor government would honour its obligations to its neighbours. It would be politically unthinkable to do otherwise. As I said in Fourth Round of Brexit Talks: Still a Logjam:
We may not have a written constitution but we do have rules that known as conventions that are at least as robust as those of other countries' constitutions. For instance, any Parliament could extend the 5-year limit to the duration of a Parliament originally contained in the Parliament Act 1911 and now re-stated in the Fixed Term Parliaments Act of 2011 but it would never do so. Would not an agreement between the main political parties not to repeal a withdrawal agreement statute be enough? The political reality for those who understand our constitution is that it probably would ....."
However, I added: "that may not be how they see things from across the Channel."

So are there any other solutions?  The Institute of Government, which describes itself as  "the leading think tank working to make government more effective" has considered a number of options in Dispute Resolution after Brexit  2 Oct 2017 which can be downloaded from that link plus this useful little video The UK position on dispute resolution after Brexit 2 Oct 2017. Re-joining EFTA and relying on the EFTA Court seems to tick more boxes than any of the others according to the Institute's infographic, but it would not be very popular with hardline Brexiteers.

Should anyone wish to discuss this article, call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Further Reading


Date
Author
Title
Source
12.10.2017
Institute for Government

Thursday, 5 October 2017

German Industry Federation advises its Members to prepare for a Hard Brexit















Jane Lambert

In an article on its homepage entitled Deutsche Industrie schaut mit Sorge auf Fortgang der Brexit-Verhandlungen (German Industry views with Concern the Progress of the Brexit Negotiations) the Bundesverband der Deutschen Industrie e.V. ("BDI") the Confederation of German Industry (the equivalent of the CBI) warned its members with interests in the UK to prepare for a very hard Bexit ("einen sehr harten Austritt Großbritanniens aus der Europäischen Union"). "Anything else would be naive," said the BDI's Director-General Joachim Lang.

There is more gloom from the Bar Council which reports that the working assumption of the Commission's art 50 Task Force is that "there will be no formal EU-UK relationship in future. Therefore, following UK withdrawal, no CJEU, no single market, end of application of 4 freedoms and all economic rights; no cooperation in civil and criminal justice etc. UK nationals will no longer be EU citizens" (see Brussels News Issue 137 5 Oct 2017). It follows that "no protection will be given to secondary establishment and cross-border services. Thus, if a UK lawyer is appearing in a case pending before the CJEU at withdrawal date (WD), the client must change lawyer."

The Bar Council reports that the Task Force is aiming for an orderly winding down in judicial cooperation as in other areas. "The EU regime will cease to apply to the UK as at the date of withdrawal. The UK will be starting with a blank sheet, even with the Lugano Convention etc, since it is not a signatory in its own right."

I regret to say that I share the BDI and Bar Council's gloom because I do not think that the remaining 27 states can accept a withdrawal agreement that binds them as a matter of European Union law but not us.  German and other exporters will no doubt lose some sales if tariff barriers and customs formalities return at the border but they will not lose their market altogether. Where else are we Brits to get our cars, white goods, sparkling wine and luxury leather goods than the EU27? The Bar Council concludes that "the harsh reality is that the clock ticking is a far more serious problem for the UK than it is for the EU, whatever committed Brexiteers may wish to believe."

Anyone wishing to discuss this article should call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Tuesday, 3 October 2017

Brexit Briefing - September 2017

Helen Tse and Jane Lambert














Jane Lambert

Since my last Brexit Briefing, there has been a fourth round of negotiations on the terms of the UK's withdrawal from the EU, Mrs May made a speech at the church of Santa Maria Novella in Florence that has been generally warmly received, the British government and the Commission's art 50 task force published position papers on data protection and intellectual property and Helen Tse's book Doing Business After Brexit was launched in Manchester.

The Brexit Negotiations

Despite Mrs May's concessions in Florence. there is still a gap between the two sides which may prove to be unbridgeable.  It was summed up today by Michel Barnier in his speech to the European Parliament:
"We understand and share the worry of the 4.5 million British and European citizens who want to continue living and working like they did before Brexit.
This worry, which you refer to in your resolution, has been worsened by certain discriminatory measures taken by the British authorities. We are worried about this.
To effectively guarantee these rights, we need:
  1. The withdrawal agreement to have direct effect to allow British authorities and judges to rely directly on the withdrawal agreement. Without direct effect, these rights could be changed over time
  2. A coherent interpretation of the agreement on both sides of the Chanel, which only the European Court of Justice can assure."
Mrs. May went some way to allaying those fears by offering to incorporate the terms of any withdrawal agreement that guarantees the rights of the citizens of the remaining member states into English and Welsh, Scottish and Northern  Irish law, but, as I said in Has Mrs May done enough to break the Logjam? 24 Sept 2017, "it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time." In Fourth Round of Brexit Talks: Still a Logjam 29 Sep 2017 I suggested a possible solution in the form of a constitutional convention but for countries used written constitutions that is unlikely to be enough.  I fear that the reluctance of our government to accept the interpretation of any withdrawal agreement by the Court of Justice will be the deal breaker.

Data Protection 

In its position paper on  data protection, the Commission's art 50 task force warned that "the United Kingdom's access to networks, information systems and databases established by Union law is, as a general rule, terminated on the date of withdrawal." That would be disastrous for a country with a services based economy.  As I said in Another Data Protection Act! "You're joking! Not another one!" - A Short History of Data Protection Legislation in the UK 23 Sept 2017 NIPC Law, we enacted data protection legislation because other countries passed laws that restricted the flow of personal data to us To enable the United Kingdom to safeguard personal data after the General Data Protection Regulation ceases to apply to us, the Government has introduced a new Data Protection Bill into the House of Lords (see Introduction to the Data Protection Bill 16 Oct 2017 NIPC Data Protection).

Intellectual Property

The Commission's position paper on intellectual property rights including geographical indications has been generally welcomed as far as it goes.  However, it is silent on the unitary patent which Tony Rollins regards as assent to the British position that the Unified Patent Court Agreement is an international agreement extraneous to the Treaties (see Commission Position Paper on Intellectual Property Rights including Geographical Indications 7 Sept 2017). I wish I could agree with him but I don't think I can for the reasons set out in my postscript. Fourteen countries including France have ratified the UPC Agreement which means that it could come into effect upon  British and German ratification. Unfortunately, German ratification has been delayed by mysterious proceedings in the German constitutional court. The following announcement appears on the UPC's website:
"A case is currently pending in the German Federal Constitutional Court (FCC) concerning the law passed by the German Parliament on the implementation of the Agreement on the Unified Patent Court (UPCA). This will cause delay to the German ratification of the UPCA and the Protocol on Provisional Application."
There is no indication as to how long those proceedings will last.

Asia

In response to a tweet by Lord Digby Jones that the 21st Century belongs to Asia, not the EU, I looked at Chin, India and Russia which are the three largest countries in that continent and found that they are coming together in the Shanghai Cooperation Organization, BRICS and the One Belt One Road project just as we are drawing away from our neighbours (see The Shanghai Cooperation Organization 9 Sep 2017). Our IP attaché to Beijing, Tom Duke, was in the UK last month and I had the honour of chairing his talks in Barnsley and Leeds.  His visit culminated in a symposium at the IPO's London office hosted by the IPO and SIPO entitled "Future Proofing the IP System" (see UK-China IP symposium highlights importance of innovation 22 Sep 2017 .Gov.UK website).

Book Launch

Finally, Helen Tse's book, Doing Business After Brexit, to which I have contributed the chapter on IP and data protection, was launched at a meeting of the Manchester SME Club at Deloitte's Manchester office on 20 Sept 2017. I reported it in Doing Business After Brexit  24 Sep 2017 in IP North West. The photograph of us both that appears at the top of the page was taken at that event.

Further Information

Should anyone wish to discuss this article or Brexit further, call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Friday, 29 September 2017

Fourth Round of Brexit Talks: Still a Logjam

Author Gene Daniels




















Jane Lambert

In Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 and Has Mrs May done enough to break the Logjam? 24 Sep 2017 I argued that the real stumbling block to a settlement in the withdrawal negotiations is not the size of the divorce bill but what guarantees, if any, can be given of our performance of our obligations under a withdrawal agreement. As I said in my latter article, Mrs May's offer to incorporate such a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction but it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.

In their closing statements, Monsieur Barnier and Mr Davis seemed to agree. Monsieur Barnier said:
 "On citizens' rights, our priority, the UK has agreed to give direct effect to the Withdrawal Agreement.
This is very important.
It will give the assurance to our citizens that they will be able to invoke their rights, as defined by the Withdrawal Agreement, before UK courts.
We agreed to guarantee - for the citizens concerned - that the UK will apply EU law concepts in a manner that is consistent with EU law after Brexit.
But we failed to agree that the European Court of Justice must play an indispensable role in ensuring this consistency. This is a stumbling block for the EU" (see Press statement by Michel Barnier following the fourth round of Article 50 negotiations with the United Kingdom 28 Sept 2017 Commission website)
Mr Davis replied:
"But we must also acknowledge that a major question remains open between us – it relates to the enforcement of citizens’ rights after we leave the European Union.
The UK has been clear that, as a third country outside of the European Union, it would not be right for this role to be performed by the European Court of Justice.
But we have listened to the concerns that have been raised – and as a direct result of hearing those concerns the United Kingdom has committed to incorporating the final withdrawal agreement fully into UK law. Direct effect if you like.
We also recognise the need to ensure the consistent interpretation of EU law concepts.
We have not agreed the right mechanism for doing this yet but discussions this week have again been productive" (see David Davis' closing remarks at the end of the fourth round of EU exit negotiations in Brussels 28 Sept 2017 Department for exitng the European Union).
Monsieur Barnier acknowledged the progress that had been made in the talks but warned in his speech that the parties were not yet in a position to move on to discussing future trading relations. That was confirmed today by the President of the Commission who warned that such movement would require a miracle (see Brexit: Miracle needed to advance talks, says Juncker 29 Sept 2017 BBC website).

This will be a great disappointment for the British government, particularly those members of it who had campaigned for Brexit in last year's referendum. They had hoped that the remaining member states would back down on the ground that as they export far more manufactured goods to us than we export to them they had at least as much to gain from a trade deal as we would. That may be true but I doubt if it will happen for two reasons. The first is that the benefit of maintaining the union between themselves outweighs (or at any rate is perceived to outweigh) the value of their trade with us, significant though that may be. The second is that it is by no means certain that they would lose that trade as we are unlikely to lose our predilection for German cars and white goods, French wine and cheese, Spanish shoes and Italian handbags just because prices rise a little to take account of whatever tariff on those items that we may impose. They also know we want a trade deal and that Mrs May has already made concessions in her Florence speech to get one. They might be forgiven for believing that hanging tough delivers rewards.

So is there any way to break the logjam?  From a British lawyer's perspective, yes there is. We may not have a written constitution but we do have rules that known as conventions that are at least as robust as those of other countries' constitutions.  For instance, any Parliament could extend the 5-year limit to the duration of a Parliament originally contained in the Parliament Act 1911 and now re-stated in the Fixed Term Parliaments Act of 2011 but it would never do so. Would not an agreement between the main political parties not to repeal a withdrawal agreement statute be enough?  The political reality for those who understand our constitution is that it probably would, but that may not be how they see things from across the Channel.

Could we give in?  It would solve a lot of problems if we did.  It might enable us to continue to participate in a number of institutions that we like such as Euratom and the Unified Patent Court but it would probably re-open divisions in the Tory Party (and perhaps also the Labour Party) that the referendum was intended to heal. I remain pessimistic.

Sunday, 24 September 2017

Has Mrs May done enough to break the Logjam?

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Jane Lambert

The Rt Hon Theresa May MP and Monsieur Michel Barnier visited Italy last week.  Both made speeches.  Monsieur Barnier delivered his to the Foreign and European Affairs Committees of the Italian Parliament in Rome on 21 Sept 2017 (see Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament 21 Sept 2017). Mrs May delivered hers the next day at the church of Santa Maria Novella (see PM's Florence speech: a new era of cooperation and partnership between the UK and the EU 22 Sept 2017).

Mrs May went to Florence with the object of persuading Monsieur Barnier or perhaps those instructing him that the parties had made sufficient progress on the negotiation of a withdrawal agreement to discuss the terms of a new relationship between the European Union and the United Kingdon after the 29 May 2019 or any transitional period that may follow our departure.  Has she done enough to achieve that objective?

If the differences between  Her Majesty's Government and those of the remaining member states were really about money as is so often said by politicians and the press in this country, then I would say that she probably had.  She said in terms:
"I do not want our partners to fear that they will need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. The UK will honour commitments we have made during the period of our membership."
But, as I said in  Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 I don't think money is the real problem.

The stumbling block is the constitutional principle that no Parliament may bind its successor.  Whatever Mrs May agrees to in a treaty, whatever treaty commitments she enshrines in statute, a future administration, whether of the right or of the left, could repeal it and the courts of England and Wales, Scotland and Northern Ireland would have no option but to give effect to the statute.

That's not possible right now because Union law prevails over national law. If Parliament passed an Act that was repugnant to EU law our courts would simply disregard it.  After Brexit, British nationals in the remaining states will still have the guarantee of EU law if a remaining state were to enact legislation that is repugnant to the withdrawal agreement but EU nationals living here would not because the EU treaties will have ceased to apply here by reason of art 50 (3).

That is why Monsieur Barnier said in Rome:
"On citizens' rights, our priority in this negotiation:
The issue of guaranteeing the rights of EU citizens in the United Kingdom has not been solved.
It is absolutely necessary that all these citizens, hundreds of thousands of whom are Italian citizens living and working in the United Kingdom, can continue to live as they did before, with the same rights and safeguards.
This is a human and social question, which the European Parliament and its president, Antonio Tajani, are vigilantly watching, and rightly so.
Citizens should be able to enforce their rights directly from the withdrawal agreement. This would prevent any possible dilution of these rights, if the rules implementing them in the UK were to change.
In the same way, we want these rights to be valid in national courts and that national courts have the possibility – or even the obligation – to refer questions related to the interpretation of rights deriving from European law to the Court of Justice of the European Union. The Court of Justice would remain the ultimate guarantor of the agreement.
This is for a simple reason: rights need to be effectively guaranteed.
Our citizens have real concerns today – which we share – when the Home Office sends deportation letters or appears to defy High Court orders, as we read in the press.
Our position on this point has been clear since the beginning. We want to provide the strongest safeguards for the rights of citizens on both sides of the Channel. We are waiting for the United Kingdom to express the same wish."
So what did Mrs May offer in response? Well, there was some movement.  The Prime Minister acknowledged the need for guarantees and made the following concession:
"We have also made significant progress on how we look after European nationals living in the UK and British nationals living in the 27 Member States of the EU.
I know this whole process has been a cause of great worry and anxiety for them and their loved ones.
But I want to repeat to the 600,000 Italians in the UK – and indeed to all EU citizens who have made their lives in our country – that we want you to stay; we value you; and we thank you for your contribution to our national life – and it has been, and remains, one of my first goals in this negotiation to ensure that you can carry on living your lives as before.
I am clear that the guarantee I am giving on your rights is real. And I doubt anyone with real experience of the UK would doubt the independence of our courts or of the rigour with which they will uphold people’s legal rights.
But I know there are concerns that over time the rights of EU citizens in the UK and UK citizens overseas will diverge. I want to incorporate our agreement fully into UK law and make sure the UK courts can refer directly to it.
Where there is uncertainty around underlying EU law, I want the UK courts to be able to take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation. On this basis, I hope our teams can reach firm agreement quickly."
The offer to incorporate a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction - especially if our courts can take account of judgments of the Court of Justice of the European Union. But it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.  If I were advising Monsieur Barnier and his team (which, thankfully, I am not) I would have to tell them that Mrs May's concession is just not good enough.

Should anyone wish to discuss this article, he or she can call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Friday, 15 September 2017

Commission Position Paper on Data Protection and Protection of Information obtained or processed before the Withdrawal Date












Jane Lambert

On 6 Sept 2017, the Commission's Art 50 TaskForce published a position paper that had been transmitted to the 27 remaining states on the use of data and protection of information obtained or processed before the withdrawal date. That document contains the main principles of the EU position in that regard.

The Commission's starting point is that "the United Kingdom's access to networks, information systems and databases established by Union law is, as a general rule, terminated on the date of withdrawal." Such access may continue only if we fulfil the conditions set out in the position paper.

 The first of those conditions is that
"The provisions of Union law on personal data protection applicable on the withdrawal date should continue to apply to personal data in the United Kingdom processed before the withdrawal date and pertaining to
(i) data subjects in the EU27,
(ii) data subjects outside the Union,
to the extent that this data is covered by Union law on personal data protection before the withdrawal date." 
Those provisions will be contained in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("the General Data Protection Regulation") and Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA ("the Data Protection Directive"). Since the Data Protection Bill will preserve the provisions of the GDPR and the Data Protection Directive in national law after our withdrawal from the EU, that condition should not be a stumbling block.

The Commission also requires the United Kingdom Government to protect European Union and national classified information after we leave the EU to the extent that it does so now. That includes obliging contractors and sub-contractors to comply with those requirements. Again, the Commission appears to be pushing at an open door for the Department for Exiting the European Union has already indicated in the UK position paper Confidentiality and access to documents that:
  1. The UK recognises the importance of continuing to respect obligations of confidentiality and to protect information exchanged while it was a Member State. 
  2. The UK considers that arrangements agreed with respect to confidentiality and the handling of information produced while it was a Member State should be reciprocal, affording an equivalent level of protection to the UK and the EU after the UK’s withdrawal. 
  3. These protections should be equivalent to those set out in the existing regimes.
In principle, the positions of the Task Force and British Government on data protection and the protection of classified and other restricted information do not seem too far apart. The Commission has combined data protection and protection of classified information in one document whereas the DExEU has addressed those topics in two separate position papers. However, problems may emerge when it comes to details such as whether the Commission will expect the UK to abide by decisions of the Court of Justice on the interpretation of the GDPR or other legislation after we leave the EU.

Anyone wishing to discuss this article or any other matter relating to Brexit should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing - November 2017

Author  Furfur Licence:  Creative Commons Attribution-Share Alike 4.0 International Jane Lambert As most readers...