The key development this month was the publication of a revised version of the draft Article 50 withdrawal agreement, which highlights the areas on which the European Commission and the UK government now agree.
UK-EU withdrawal agreement
On 15 March 2018, the European Commission published an amended draft text of the UK-EU withdrawal agreement following discussion of the previous draft with the Council of the European Union and the European Parliament’s Brexit steering group, and submitted the draft to the UK government for negotiation.
The European Commission and the UK government published a revised version of the draft Article 50 withdrawal agreement on 19 March 2018. Significantly, the provisions on the transition period (including a right for the UK to sign and ratify, but not implement, new international trade agreements during the transition period), citizens’ rights and the financial settlement were are all agreed. The transition period will end on 31 December 2020.
However, there is still significant work to do on the governance of the withdrawal agreement (except in respect of citizens’ right) and on Northern Ireland and Ireland. On Northern Ireland and Ireland, virtually the only agreement is on the Common Travel Area and North-South co-operation. The UK has, however, agreed to the inclusion in the text of the EU’s backstop proposal that post-transition period Northern Ireland will remain in the single market and customs union, unless an alternative solution can be agreed.
Guidelines on a framework for a future EU-UK relationship
Following the agreement on parts of the legal text of the withdrawal agreement, the European Council (Art. 50) adopted new negotiating Guidelines for discussions on the framework for the future relationship between the EU and the UK. The Guidelines provide that the future EU-UK relationship should not permit cherry picking and should ensure a level playing field, and they will form the basis for the Commission to start discussing the framework for the future relationship, with the aim of reaching an overall understanding, but not a complete agreement. The European Council aims to discuss the progress made on negotiating the framework for the future relationship at its next meeting on 28-29 June 2018.
The European Parliament has previously adopted a non-legislative Resolution on guidelines on the framework of future EU-UK relations. According to the Resolution, given the UK government’s redlines, an association agreement between the EU and the UK could provide an appropriate framework for their future relationship. The resolution proposed an association agreement based on four pillars:
- Trade and economic relations (comprising a free trade agreement).
- Co-operation in foreign policy, security and development.
- Internal security.
- Thematic cooperation (for example on fisheries and cross-border research and innovation projects).
The House of Lords EU Select Committee also launched an inquiry into the future UK-EU relationship on 26 March 2018.
Article 50 negotiations: additional separation issues
Near the start of March, the government published a technical note on the UK approach to some of the other separation issues that were not addressed or not resolved in the first phase of Article 50 negotiations, including intellectual property rights (IPRs) and data protection. Regarding IPRs, the UK’s overall objective is to provide maximum clarity and legal certainty for IPR users, applicants and rightholders by agreeing arrangements appropriate to each type of IPR agreed to be within the scope of separation discussions. Regarding data protection, the UK and EU should agree to continue to provide appropriate protections for data and information exchanged before exit and pursuant to the Withdrawal Agreement.
European Union (Withdrawal) Bill 2017-19
On 8 March 2018, the government published new sample statutory instruments that purport to illustrate how its amending powers under the European Union (Withdrawal) Bill 2017-19 (EUWB) may be used. The EUWB includes powers to make secondary legislation to address failures of retained EU law to operate effectively and other deficiencies arising from the UK’s withdrawal from the EU.
While the government has stated that the sample statutory instruments are only for illustrative purposes at this stage, the samples present an important indication of how amending legislation under the EUWB may be presented and published. They may also assist practitioners in understanding how they will be able to identify amendments made pursuant to the EUWB in their respective practice areas.
Consumer protection issues
The government published its response to the House of Lords European Union Committee’s critical report on the protection of consumer rights post-Brexit in the middle of March. The government’s response agrees with the concerns raised by the Report but reveals little about its proposals to address them. For example, the Report requested clear information about how the government will secure the UK’s post-Brexit access to the EU’s reciprocal cross-border mechanisms, resources and infrastructure that police European consumer protection standards.
Intellectual property issues
At the end of March, the Alliance for Intellectual Property published a paper on the risks of Brexit for intellectual property (IP). The Alliance is a coalition of 20 organisations (including the BPI, Design and Artists Copyright Society, Motion Picture Association and the Premier League) with an interest in ensuring IP right protection. The paper highlights “cliff-edge risks” which the Alliance says present “such serious risks to IP-rich sectors that it is essential they are considered in depth”. The Alliance seeks consultation regarding the risks and then detailed assurances from the government on how it intends to avoid them.
The European Commission also published a notice on the effect of the UK’s withdrawal from the EU in the field of copyright. The notice states that, in view of the UK’s notification of its intention to withdraw from the EU, the EU rules in the field of copyright will cease to apply to the UK from 30 March 2019 at 12.00 midnight (CET) (the withdrawal date), unless a ratified withdrawal agreement establishes another date.