Understand Your Rights. Solve Your Legal Problems
James Simpson, Partner at Blaser Mills Law, examines the known and unknown outcomes of Brexit for UK firms, and how international data transfers will be altered.
Although the UK left the European Union on 31 January 2020, for practical purposes its relationship with the EU has remained largely unchanged due the transition period. Since 31 January 2020, both sides have engaged in negotiations with the aim of negotiating a trade deal. At the time of writing, no such deal has been achieved and businesses are left wondering whether they will be operating under a ‘deal’ or a ‘no-deal’ situation from next year.
For businesses currently grappling with the global coronavirus pandemic it is difficult to know how to prepare for an uncertain future. A survey by the British Chamber of Commerce in September 2020 concluded that there was insufficient information for businesses and that a significant numbers of its members remained unprepared for a deal/no-deal situation.
One particular area of concern is data protection. The General Data Protection Regulations (GDPR), which were incorporated into UK law from EU law in May 2018, introduced greater protections for the transfer and processing of data and gave individuals more control over when and in what context their data could be used. The Government produced a guide providing more details about the GDPR and its implications for businesses.
From 1 January 2021, the GDPR, along with the Data Protection Act 2018, will become known as EU retained law and will be incorporated into UK legislation. This means that, for the immediate future, the data protections in the UK will remain largely unchanged. The UK Parliament could, in the future, make changes to the legislation. However, this could have consequences for UK/EU trade.
Once the UK leaves the EU, it will become a ‘Third Country’ under the GDPR. This means that the European Commissioner must assess the UK’s data protection regime to determine whether it provides adequate protections for data subjects. Under terms previously agreed, the European Commissioner has agreed to start this assessment shortly after the UK leaves the EU and if the outcome of the assessment is positive, an ‘Adequacy Decision’ will be issued thereby allowing data to flow freely from EU member states to the UK. The UK has already issued an ‘adequacy notice' for the EU thereby allowing data to flow from the UK to the EU.
From 1 January 2021, the GDPR, along with the Data Protection Act 2018, will become known as EU retained law and will be incorporated into UK legislation.
However, the “Adequacy Decision” is not guaranteed because the EU has an issue with our surveillance framework. This has provided a problem for the USA where the “Privacy Shield” provisions that were relied on for data transfers to the USA were recently rendered invalid by the Schrems II decision. This was because of the surveillance activities carried out by the US government together with concerns over data rights. The EU has similar issues with surveillance activities in the UK and could mean that the UK does not get its much needed “Adequacy Decision”.
The Government is now assessing the impact of the Schrems II decision. It is worthwhile noting that even if granted, Adequacy Decisions are subject to periodic review and can be revoked by the European Commission or challenged before the ECJ.
The Information Commissioner (ICO) will continue to oversee and enforce UK compliance with the UK’s data protection regime but will no longer sit or take part in EU debates and discussions. The ICO has produced guidance on post Brexit obligations along with some frequently asked questions.
In the event that the UK leaves the EU without an Adequacy Decision, companies are advised to use standard contractual clauses (known as SCCs). These provide for the protection of data when it is being processed by a third party. The ICO has produced an interactive tool for small and medium businesses to use for this purpose.
With the Schrems II decision, use of SCCs will also require an assessment of the data protection rules in the receiving country. This means that existing SCC arrangements may need to be refreshed. Conversely, transfers from the UK to the EU can continue without additional protections being put in place, as the UK deems that EU countries have an adequate level of data protection.
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Groups of companies can also look to binding corporate rules (known as a BCRs) that can cover cross-border data transfers within a group. These are unchanged and are a solid foundation for data transfers but they require approval from the supervisory authority in each member state. Alternatively, groups can use well drafted data transfer agreements. And, if all else fails, another alternative is to rely on express consent from the data subject for the transfers. However, consents need to be very carefully secured and recorded to ensure that they are valid under GDPR. Consent can also be withdrawn by the data subject at any time making this a risky option for a business to rely on.
Finally, businesses need to consider the application of Article 27 GDPR. In some circumstances, this requires a non-EU organisation that does not have an “establishment” in the EU to appoint a “Representative” within the EU in relation to its processing of the data of EU citizens. Presently, in the transition phase, UK organisations do not need to do this. However, when the UK becomes a “Third County” and if the requirements are met, UK organisations must have a “Representative” in the EU. The UK is likely to have a similar regime and so EU organisations may also need to appoint a “Representative” in the UK if they process the data of UK citizens. Hence, organisations need to check if they are affected by this requirement.
It is hoped that things become clearer as we approach the end of the year and a “deal” materialises, but even if it does, cross-border transfers are still going to require consideration because the power blocs around the globe have different views about how data can be used and regulated.
Finally, the Government has produced guidance on using personal data in businesses after the transition date which organisations may find useful.
Aman Johal, Director of Your Lawyers, takes a look into the history of the Consumer Rights Act and how it has affected businesses and customers in the UK.
The coronavirus pandemic has reportedly resulted in a number of businesses making unfair and misleading claims about products and services. We have seen excessive prices charged for high demand goods like hand sanitisers, and companies refusing refunds despite being contractually obliged to issue them. From March to April 2020, the Competition and Markets Authority received almost 21,000 complaints about consumer goods and purchases related to coronavirus.
The Consumer Rights Act has been critical in defending consumers in the face of these unprecedented events. Since its introduction five years ago, people have benefitted from this unified piece of legislation that can be helpful for transparency and fairness.
The Consumer Rights Act came into force on 1 October, 2015. It was introduced to build consumer confidence, encourage transparency amongst retailers, and modernise pre-existing laws to reflect changing habits. The Act renewed three former pieces of legislation and unified rules on consumer contracts, refund rights and product quality.
As with the laws it ties in with, the 2015 Act emboldens the rights of consumers in that all goods must be described accurately, be fit for purpose, and be of satisfactory quality. Products sold must also match any model inspected or seen by a consumer. For instance, a car which is sold must measure up with the one displayed in the showroom where it is being sold on that basis. Services must be supplied with reasonable care and skill and provided within a reasonable time, and for a reasonable price. Updates were also made to the UK’s refund policy, which was changed to give a fixed period of 30 days to return a product.
The 2015 Act emboldens the rights of consumers in that all goods must be described accurately, be fit for purpose, and be of satisfactory quality.
As well as updating existing legislation, the Act covers new areas of law to reflect modern consumer rights. For the first time, the 2015 Act considered digital content within its remit – a much needed and modernised update. Consumers now have the right to complain about problems with purchased digital content, such as faulty film or music downloads.
Businesses must be aware of the 2015 Act to ensure they sell safely and responsibly to consumers. All too often, we see businesses disregarding consumer rights and taking advantage of customers for financial gain. The ongoing ‘dieselgate’ scandals that involve car manufacturers, including Volkswagen and Mercedes, are matters that we are involved with. In the case of Volkswagen, millions of UK consumers purchased vehicles which could emit illegal levels of nitrogen oxide pollutants – behaviour that is in clear violation of all three criteria mandated in The Act. Your Lawyers is committed to holding any carmaker to account if they are found to have cheated important emissions regulations. In the Volkswagen matter alone, the manufacturer could be forced to pay a total of up to £10.2 billion to UK customers and Mercedes owners could be entitled to receive up to £96,000 each in damages under certain regulations.
Under the 2015 Act, traders must ensure that pre-sales information accurately describes the product or service in question. Businesses must also include the right to a refund, which is particularly relevant considering the coronavirus crisis. Many consumers are struggling to obtain refunds for things like cancelled flights, and British Airways has made headlines having been accused of forcing customers seeking refunds to accept vouchers as compensation instead. Consumers need to remember that they may be entitled to a refund, even if airlines offer credit vouchers instead.
Under the 2015 Act, traders must ensure that pre-sales information accurately describes the product or service in question.
Consumer products bought in the UK must align with the three criteria specified in The Act: they must be of satisfactory quality, fit for purpose, and as described when purchased. It is the responsibility of the business to make sure that these criteria are upheld for all purchases.
Consumers have a legal right to reject purchased goods within 30 days which do not fit the criteria. Outside of the 30 days, consumers can give the retailer an opportunity to repair or replace goods, or be entitled to a full or partial refund if, for example, the cost of the repair does not represent the cost of the product, or would cause the consumer significant inconvenience.
The Act also simplified consumer disputes with the user of Alternative Dispute Resolution (ADR). If a consumer engages a business in a dispute, the business is obligated to make the consumer aware of the relevant ADR. To use the ADR, consumers must be able to show a ‘letter of deadlock’ proving that they tried to resolve the complaint through the trader’s complaints procedure.
The updated Consumer Rights Act is a helpful step in the right direction in preventing companies from engaging in deceitful practices and strengthening the power consumers have to ensure for a fair marketplace.
Although the 2015 Act took into account digital content for the first time, it’s likely that we will need to continue to update this legislation as technology continues to evolve.
With the Brexit transition deadline approaching on 31 December, Britain’s departure from the EU is also likely to have an impact on consumer rights. The Online Dispute Resolution platform managed by the European Commission is set to remain available until the end of the transition period – after that, the future looks uncertain.
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It is critical that businesses are prepared for this transition so that they can uphold consumer rights. Businesses may need to comply with multiple insolvency regimes across the EU. Failure to do so could not only lead to financial penalties but reputational damage and consumer mistrust. Consumers are more informed than ever before, expecting the highest standard from their purchases, and we must help ensure that these standards are met by businesses going forwards.
The 2015 Consumer Rights Act has been pivotal over the past five years in driving action against companies who deceive their customers. The push towards greater transparency and clarity of rights has set the right tone for defending consumer rights in an increasingly complex environment, and we must continue to make sure that these are upheld in the years to come.
The EU has begun legal proceedings against the UK after it refused to drop legislation that would invalidate sections of its Brexit deal.
Ursula von der Leyen, the European Commission president, said in a statement on Thursday that Prime Minister Boris Johnson had been given until the end of September to remove the contentious clauses in the draft legislation, but “the deadline had lapsed”.
“This draft bill is by its very nature, a breach of the obligation of good faith, laid down in the withdrawal agreement,” von der Leyen said. “Moreover, if adopted as is it will be in full contradiction to the Protocol on Ireland and Northern Ireland.”
As the contentious provisions in the draft had not been removed, she said, “The Commission has decided to send a letter of formal notice to the UK Government. This is the first step in an infringement procedure.”
As it currently stands, the internal market bill would grant ministers legal powers to determine rules on state aid and goods moving between Northern Ireland and mainland Britain, overriding elements of the Northern Ireland protocol that was agreed to in October 2019 in order to avoid a return to a hard border in Ireland.
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Northern Ireland Secretary Brandon Lewis conceded in early September 2020 that the internal market bill would break international law in “a specific and limited way.”
The UK said it would respond to the EU’s legal action “in due course,” adding: “We have clearly set out our reasons for introducing the measures related to the Northern Ireland Protocol. We need to create a legal safety net to protect the integrity of the UK’s internal market, ensure Ministers can always deliver on their obligations to Northern Ireland and protect the gains from the peace process.”
Nicola Sharp of business crime specialists Rahman Ravelli considers some of the law enforcement issues that need to be clarified by the UK and European Union in the wake of Brexit.
In these strange current times, video conferences are probably more common now than they have ever been. So it is far from surprising that video is the means by which the presidents of the European Council, the European Commission and the European Parliament and the UK Prime Minister held their recent discussions about UK-EU relations after Brexit. The aim, it was announced, was to take “stock of progress with the aim of agreeing actions to move forward in negotiations on the future relationship.” Days later, the UK’s PM Boris Johnson and French President Emmanuel Macron were talking of the need to intensify talks to prevent EU-UK negotiations “dragging out’’ into the autumn.
Such talks – by video or in person – are inevitable due to the seismic shift in EU-UK relations caused by Brexit. What few will have seen as inevitable is that four years after the UK’s Brexit referendum there is still much uncertainty about that relationship. Even the actual departure date remains tentative, with the transition period due to end on 31 December 2020, and deadlines have been missed and redrawn.
Much of the talk, perhaps obviously, focuses on the future shape of business between the two now-separate entities. But alongside this, there has to be concern about the current uncertainty regarding cooperation between the UK and EU on law enforcement; in particular relations regarding extradition. After 31 December 2020 (the end of the transition period), the UK will no longer be part of the European Arrest Warrant (EAW) system. This system exists to ensure that EU member states can return a criminal suspect to the state that is seeking that suspect for trial or to enforce a custodial sentence. If there are no new bilateral arrangements with individual EU states, it appears that the UK will return to the framework of the European Convention on Extradition 1957 (the ECE). This may not sound especially dramatic. But the reality is that it will mean that extradition of a suspect from an EU state will cost more, take longer and be more complex than it is at present.
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What will not be so straightforward to quantify about a return to the ECE will be the risk it poses to robust security co-operation between the UK and EU states – and, therefore, the apprehension and trial of alleged criminals. Both French and German courts refused to extradite four individuals caught up in the Serious Fraud Office’s (SFO’s) five-year long investigation into the alleged manipulation of the Euribor rate. The SFO has since announced an end to the investigation, having realised the four were never going to be extradited to the UK. Extradition can only occur within the EU if the alleged wrongdoing constitutes a crime in both the country requesting extradition and in the country that receives the extradition request.
It has been four years since Frankfurt prosecutors dropped their parallel case, as it was found that the alleged rigging did not constitute a criminal offence in Germany. As a case, it shows how issues that can arise if countries are not “as one’’ when it comes to law enforcement. In the wake of Brexit, it is hard not to envisage further divisions. If we take Germany as an example, its constitution has strict limits upon the extradition of its nationals. An exception to this is requests from other EU countries via EAW. Without the UK being part of this scheme following Brexit, it is hard to see Germany complying with any British requests to arrest and return any German nationals.
In order to maintain friendly trade relations with the EU, the UK is expected to stick closely to EU policy on anti-money laundering legislation. In January, the UK implemented the EU’s Fifth Anti-Money Laundering Directive. We have recently seen that plans are in place for the creation of a new, dedicated EU anti-money laundering supervision body and it seems as though the UK is not likely to renege upon its alignment with the EU upon its AML commitments following Brexit. All the signs are that the EU and the UK share a desire to target money laundering. But in specific regard to the new EU anti-money laundering supervision body, the UK’s active participation in such a proposal is uncertain. As a continuing member of the Financial Action Task Force (FATF), it is unlikely that the UK will relax its AML controls post-Brexit, which may prevent some divisions.
But, as with much of UK-EU post-Brexit relations, it appears that many more video conferences are required to iron out the details.
While the legal world grapples with the COVID-19 pandemic, the full impact of Brexit has yet to be fully assessed. Amanda Hamilton, CEO of National Association of Licenced Paralegals (NALP), offers Lawyer Monthly her take on the likely outcomes for the paralegal profession.
There’s no doubt that Brexit will have a knock-on effect for many different professions. I have friends and acquaintances involved in architectural design, architectural photography and construction and who have indicated that their business is already suffering. Many of their clients are EU nationals and they’re holding back work to see what will happen as a result of the UK leaving the EU. They may have a long time to wait since changes won’t happen immediately. Clearly, this will seriously endanger the survival of many such businesses.
Will there be a similar effect within the legal profession? That’s yet to be seen. Since we have a unique legal system in England and Wales, it’s probable that on a day-to-day level, Lawyers (and I include Paralegal Lawyers) will not be affected in the same way as other professionals mentioned above, since generally, they are dealing with matters relating to English Common Law. Of course, some law firms are multi-national and may have offices in EU locations and therefore, in such instances, there will obviously be changes to their daily operations.
As for the Paralegal Profession, it is likely that it will be business as usual, although in respect of EU nationals requiring assistance on immigration matters, these types of cases may increase. We have no idea at this particular moment in time what changes will be made and how soon they will be actioned.
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Since Paralegal Practitioners tend to take up the slack left by the virtual eradication of legal aid, and therefore, tend to handle the lower end claims and matters that solicitors are not able, or indeed not financially viable to deal with, it is more likely that they will not be affected.
At this stage we can only conjecture what may happen and since there will be EU nationals based in the UK who may be the recipients of negative attitudes and actions towards them as time passes, we could see an increase in the number of cases relating to racist behaviour, assaults and criminal activity, all of which may impact on the paralegal sector, requiring more qualified paralegals to step up to the plate to assist such individuals.
Of course, for those paralegals working in law firms which may have connections with the EU, there could be more of an impact. If such firms are going to be affected, then it is likely that the first victims of any economic consequences may well be paralegal jobs.
The difficulty that we find ourselves in within the legal sector is the same as everyone else in most sectors: we don’t actually know how Brexit will impact on us and how quickly or slowly the changes, if there are any, may occur.
Since Paralegal Practitioners tend to take up the slack left by the virtual eradication of legal aid [...] it is more likely that they will not be affected.
Within the legal process itself and the court system in England and Wales, we are self-contained in that we have our own appeal hierarchy which will not change. As we currently stand, the European Court decisions still bind all British courts on matters relating to European Community Law.
However, a statute first proposed as The Great Repeal Bill in 2016, was given Royal Assent in June 2018 and is known as the ‘European Union (Withdrawal) Act 2018’. The statute will do several things: firstly, it will repeal the European Communities Act 1972 which provided legal authority for EU law to have effect as national law in the UK. Secondly, it brings all EU law onto the UK books meaning that all EU law implemented over the last 40 years or so while the UK was an EU member will continue to apply after Brexit, making it ‘EU retained law’.
EU law has covered such areas as worker’s rights, environmental regulations and the regulation of financial services. These have already been integrated into our legal system and so to withdraw them would cause uncertainty and confusion.
It is becoming apparent that many areas of our legal system and daily lives have been positively affected by being a part of the EU. Our working lives have become better through human rights legislation and employment rights and we cannot ignore the input that the EU has provided over this long period of time.
What will be telling, is where we go from here. The question we need to ask is: Will we completely ignore elements of legislation coming from and implemented by the EU and do our own thing, or will we be guided and look to the EU and implement similar legislation but in our own way?
What's Next for Brexit?
With the UK now having left the EU, and the transition period underway, it’s time for businesses to start preparing for a new trading landscape. But where should they start, and which key dates could impact their plans, as the UK/EU trade negotiations begin?
Nick Farmer, international advisory partner at accountancy firm, Menzies LLP, explains what we can expect to see in the coming year.
Although the UK left the EU on 31 January, it will remain part of the EU customs union and single market until 31 December 2020. This means that during this transition period, businesses can continue to trade in the EU without tariffs, customs checks or other regulatory restrictions. For many, it’s basically business as usual for now.
Additionally, EU Directives will continue to apply during the transition period, and this can assist with eliminating withholding taxes on dividend, interest and royalty payments. However, as the UK has formally left the EU, there may be immediate implications for such payments from third countries where reliance is being placed on a tax treaty. For instance, this can arise in tax treaties with the US, where the limitation on benefits provision may require EU/EEA membership to benefit from reduced rates of withholding taxes.
Trade negotiations between the UK and EU will be ongoing throughout 2020, with the hope that a new UK/EU trade agreement will be in place by the end of the year. In relation to trade with non-EU territories, the UK currently benefits from EU trade agreements that cover more than 70 countries, and these will also fall away at the end of the year.
With so many new trade relationships to be forged before then, it is clear that these trade negotiations are likely to dominate the political agenda in 2020. Businesses may be tempted to wait to see if the current transition period will be extended, but this seems unlikely, as an extension of one or two years would only be possible if both the UK and EU agree to it, before 1 July 2020, and the UK government has currently ruled out this option.
It is clear that these trade negotiations are likely to dominate the political agenda in 2020.
Throughout the transition period, it will therefore be important for UK-based businesses to keep a close eye on the progress of all ongoing trade negotiations, paying particular attention to areas of the world where their goods or services are being sold. They should consider what trade agreements they are currently taking advantage of, and how they could adapt their footprint or trading activities if negotiations take a turn for the worse.
The US is an important export market for many UK companies, and the government is hoping to secure a favourable trade deal. However, there are some potential deal breakers in play, including the UK’s proposed Digital Services Tax, which could cause the US to impose punitive tariffs on selected UK imports. The forthcoming post-Brexit budget statement on 11 March could bring an announcement on this subject.
Among the key changes to take effect from the start of 2021 are the removal of EU tax directives. These are important to businesses that have activity in the EU. For instance, the Parent-Subsidiary Directive currently allows money to flow from EU subsidiaries to a UK-based parent company, without incurring a withholding tax liability whereas, after 31 December, reliance on tax treaties may result in local withholding tax of between 5 and 10 percent. Similarly, the removal of The EU Interest and Royalties Directive will affect cross-border interest and royalty payments made into a UK-based corporate entity in the same way.
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In preparation for the potential VAT and customs changes from 1 January 2021, businesses should consider mapping supply chains and pinpointing where tariffs, including import VAT and customs duties, may apply. Customer and supplier contracts should be reviewed in respect of terms of sale and delivery, in order to check which party is the importer of record and ensure the relevant Economic Operator Registration and Identification (EORI) numbers have been applied for.
Completion of customs declarations must be addressed, and key responsibilities within the business established. Employers should be asking questions about whether their staff are suitably trained, if additional staff may be required, what systems may be necessary, and where potential additional costs for undertaking the work, either in house, or externally through an agent, may arise. Quantifying these factors as far as possible can ensure they are in the best position to take advantage of any additional support that may be needed, for example, grants from HMRC.
If import VAT and customs duties are due to be paid, the cash flow impact of paying and reclaiming this should be considered, along with the actual cost of incurring customs duties, which are not reclaimable and so may affect pricing.
Businesses must start preparing for a very different trading and fiscal landscape from the start of next year. While there is still much uncertainty surrounding Britain’s free trade negotiations, there are clear steps that businesses can take now to mitigate the financial effects of the post-Brexit landscape.
What are the main differences between Scots and English family law?
There are some striking differences between Scots and English law relating to financial provision on divorce, for example, in relation to spousal maintenance, the treatment of pre-marriage assets, and the approach to pension sharing. The grounds for divorce, and the legal procedure, is also quite different. In Scotland, there is no Decree Nisi followed by Decree Absolute - it’s a one-stage process. One of the most striking procedural differences is that in Scotland, the granting of decree of divorce ends the right of one party to make financial claims against the other; in other words, financial remedy must be dealt with before decree is granted.
In England, by contrast it is possible to divorce first and then make a claim for financial provision, potentially many years later. In some cases, the same set of facts can give rise to a hugely different outcome north and south of the Border. At Morton Fraser, we've developed a niche practice advising clients with a connection with more than one part of the UK about where they can competently litigate, and where their interests might be best served. We've become familiar with the rules which determine which set of divorce proceedings has primacy in a situation where there is ongoing divorce litigation in more than one part of the UK. We are often instructed by people living in Scotland who find themselves on the receiving end of English proceedings.
Where there is the possibility of divorce proceedings in more than one country, it is vital for clients to obtain early advice about how best to protect their interests
What happens when an ex-pat wants to file for divorce?
We tend to find that, when a marriage goes awry, ex-pats will typically look to their home country for legal assistance, rather than relying on the legal system of the place in which they happen to be living. Depending on where the parties are living and on their nationalities, the rules governing jurisdiction (which are of course currently based on EU Regulations) often permit people to initiate divorce proceedings in the UK even where neither party is living there.
Where there is the possibility of divorce proceedings in more than one country, it is vital for clients to obtain early advice about how best to protect their interests, often from lawyers in more than one country. The ultimate decision about where to apply for divorce can depend upon various considerations, such as where the bulk of the assets are situated. Divorcing whilst living abroad can trigger various legal consequences, for example, immigration issues, so it’s important to think through these at an early stage.
Family law cases in general can become more complicated when children are involved, and that is most certainly the case in an international context.
How complicated does dividing assets become with ex-pat divorces?
If an ex-pat divorce is proceeding in the UK, then the principles governing financial provision will be those of the part of the UK where the divorce is taking place. However, matters can become complicated in a variety of ways. The first problem can be one of obtaining disclosure in relation to assets situated abroad. There are steps we can take in UK divorce proceedings to find out the nature and extent of assets in the UK, but it’s potentially much harder if these are scattered across a number of countries. If there are significant assets abroad, then enforcing any judgment made by a UK court can also be extremely difficult. Sharing pensions situated outside of the UK, whilst not always impossible, is complex even where the parties are entirely cooperative.
Can things become more complicated when children are involved?
Family law cases in general can become more complicated when children are involved, and that is most certainly the case in an international context. Whilst a UK court might have jurisdiction to make orders relating to children abroad by virtue of the parties' divorce taking place in the UK, actually enforcing those orders can at times be impossible. An ex-pat with children often can't simply return to the UK with the children, without obtaining either the consent of the other spouse or the approval of the court in the place in which they have been living.
Do you think much will change in this area with Brexit?
That's a very good question, to which I don't think that anybody currently has a clear answer! Given that our jurisdictional rules in family cases are all based on European Regulations, there will undoubtedly be some changes, but exactly what will change is not yet clear. There are some who would favour reciprocal arrangements with the EU which would have the effect of maintaining the current framework, and others who would like to take this opportunity to entirely re-write the rules. Now that Brexit has finally happened, I think it's very likely that over the coming months, interested bodies will start to engage about what they would like to see happening next.
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Rhona Adams’ story into law
I'm a Partner of and Head of the Family Law Team at Morton Fraser. I've been here since 2002, when the small firm where I was previously a partner, merged with them. Before I came to MF, although the greater part of my practice consisted of family law, I also did some personal injury and medical negligence work. On arrival at MF, I had to decide which area I wanted to specialise in going forward. I chose family law and haven’t looked back! Lots of people asked me at the time if dealing with nothing but divorcing clients wasn't going to be terribly depressing, but in truth, I have really enjoyed it.
It has helped greatly to be surrounded by an excellent and highly collegiate team. We are one of Scotland's biggest family law teams, spread across our offices in Edinburgh and Glasgow. No matter how tricky or obscure the problem, there is always someone in my team who has experienced the issue and can offer some words of wisdom. The team have all been encouraged to develop their niche interests and we can boast expertise in many aspects of family law, from international child abduction to prenuptial agreements, and from public law children cases to farming divorces.
The two things I've done during my legal career which have had the biggest impact on my practice as a family lawyer have been firstly, training as a family mediator, and secondly, becoming dual qualified in Scots and English law. I became an accredited mediator, long ago in 1998 (which makes me feel very old!) I found mediation training quite inspirational – the insights and techniques I learned have definitely informed my entire approach to practice. Mediation has never been the mainstay of my work but I have had a fairly steady stream of it in recent years. When it works, it’s very rewarding.
Learning about English family law was fascinating for a Scots lawyer – the legal language, and to some extent the underpinning philosophical approach, is quite different. My practice is now mainly centred on financial provision and seems increasingly to feature cases either with an intra-UK cross-Border element or cases with an international element.
Rhona Adams
Partner
Email: rhona.adams@morton-fraser,com
Direct dial: 0131 247 1339
www.morton-fraser.com
This could very much be the case for the UK in our new post-Brexit circumstances.
Here Sonia Cheng, an expert at immigration and corporate solicitors Excello Law, explains what this might look like, how it would work for the UK, and in particular, how it may impact both domestic and cross-border business.
Successful applicants (only the best and the brightest) require a good grasp of English, a higher education qualification, and must have been law-abiding citizens in their own country. To qualify, ‘most people coming into the country will need a clear job offer.’ Although, it should be noted, these are the current requirements already in place for non-EU citizens coming to work in the UK.
Further details are sparse, save for a nebulous statement that ‘we can decide who comes to this country on the basis of the skills they have and the contribution they can make.’ As a transitional post-Brexit measure, people from ‘low-risk countries’ in the EU and further afield may still enter the UK without a job offer and work for up to a year. However, the Home Office’s recent entirely redacted list of nations in different categories of ‘risk’ leaves ambiguity as to which countries are low or high risk. How they decide which category of risk is also unknown.
As a transitional post-Brexit measure, people from ‘low-risk countries’ in the EU and further afield may still enter the UK without a job offer and work for up to a year.
Inevitably, there will be multiple implications for employers, especially those in sectors which employ a high proportion of EU nationals: hospitality, healthcare, social care, food production, retail and construction.
In 2008, the Labour government introduced a points-based system for non-EEA migrants. Despite the government stating that the system was inspired by Australia’s model, there are major differences, including:
In Australia the government plays a significant role in deciding who should be admitted based on their personal characteristics as well as the jobs that they will do.
Under a purely points-based system, it should be possible for someone to come to the UK without a guaranteed job, as long as they meet the necessary points criteria. Points should be awarded to prospective migrants for the skills and attributes that they possess (e.g. education, languages, work experience etc.) and they may off-set points from one to make up for a lack points in another.
Currently, the UK’s system doesn’t allow this. Each criteria has a set number of points to be awarded and the applicant either meets this criteria and gains the points or does not. There is no flexibility to off-set points (except for the current restricted Tier 2 (General) sponsorships where there is a separate points test).
It has been suggested that the UK could allow flexibility for this. In order to ensure better control, the system could prioritise categories such as job offers. However, there has been no suggestion that the government plans to change the current way that points are assessed and attributed.
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The UK’s current system for foreign workers is considered a ‘dual’ system; EEA workers of any skill level can come to the UK however only ‘highly skilled’ workers are permitted, predominantly, from outside the EEA under the specific work visa routes.
The proposed system will apply to EEA workers and non-EEA workers. Some of the proposals include:
This is the most popular route for non-EEA workers coming to the UK and the current cap is 20,7000 per year.
Currently RQF level 6 (graduate/post-graduate level) to be lowered to RQF level 3 (A -level).
This is purportedly to assist sectors that rely heavily on an EU national workforce such as care services, agricultural sectors etc.
Research carried out by The National Institute of Economic and Social Research and CIPD has produced unambiguous findings about what employers want. An Australian-style points system is not on the list, while a ‘straightforward’ and ‘light touch’ approach is. The research concluded that most businesses hire EU nationals because they ‘have difficulty attracting UK-born applicants to fill unskilled or semi-skilled jobs’.
With such a lack of details, UK businesses will once again have to adapt quickly and endure any new system and legislation the government decides to proceed with.
Tonight as the clocks strike 11pm the UK will officially leave the EU, closing the curtain of decades of membership and access to the free markets of Europe, and although trade deals, borders and business needs to be organised, discussed and ratified, it needn’t be all doom and gloom according to Alan Farkas, partner at the international law firm Dorsey & Whitney. "Whilst Brexit inevitably caused great uncertainty and with it a significant drop off in M&A activity, there is a growing sense amongst both Corporates as well as M&A professionals that the tide may be about to turn. Indeed, much has already been written about the “Boris Bounce,"" Farkas says.
"It remains unlikely that there will be much clarity before the Autumn in relation to the specifics around a trade deal with the EU. Between now and the end of the transition period under the Withdrawal Agreement, the UK Government will take action to stimulate the economy and lay out plans to reinforce the message that the UK is “open for business” and is an attractive place to invest," Farkas says.
There has been more words written that could be classified as either project fear or project reality – depending on which side of the vote you sit – and experts and analysts have espoused much evidence to back up their various assertions about the outcome of the UK’s exit from Europe, but the unanswered question is whether Brexit will make the UK a more attractive proposition for businesses and facilitate growth in the M & A markets.
Again, Mr Farkas suggests that this may indeed be the case: "Whilst a lot has been said about, the threats and risks associated with Brexit, there may be several positives that could potentially make investing in the UK highly attractive to foreign businesses."
“With continued uncertainty over what form a “comprehensive” trade deal between the UK and the EU will take, the “pound” is unlikely to strengthen in the short to medium term. Therefore, the opportunity for foreign buyers to invest in UK assets at an attractive price will remain for some time," Farkas says.
“The UK Government continues to insist that it does not wish to have long-term regulatory alignment with the EU and on that basis there would be less “red tape” faced by UK companies making the UK more attractive as a place to invest with increased regulatory flexibility," Farkas says.
“Whilst there remains a lot of “grand standing” by both sides over the terms of a trade agreement between the UK and the EU, there is a general acceptance (as stated in the political declaration that accompanied the Withdrawal Agreement) that trade between the UK and the EU will be based on “zero tariffs and zero quotas”. Stephen Barclay the UK’s Brexit Secretary has stated “it’s in both sides interest to keep the flow of goods going," Farkas says.
“Whilst originally there was considerable concern as to the potential impact of Brexit on the UK’s financial services sector – in recent months there has been a growing acceptance that there could be a significant upside for the UK’s financial services sector of not being aligned with the EU in terms of financial services. After Brexit, the UK could boost financial services by lowering capital requirements, easing taxes and loosening labour laws. UK financial services is not as geographically limited as goods, and can therefore instead focus on building new relations with other financial hubs around the world such as Hong Kong and Singapore," Farkas says.
"The “equivalence regime”, the system by which the EU will allow the City of London to access EU markets on condition that financial regulations mirror EU rules, can be withdrawn on 30 days’ notice, the practical realities are that the City of London dwarfs the financial sectors of Paris, Frankfurt and Amsterdam. The EU would be most unwilling for the UK to leave its regulatory orbit in the short to medium term," Farkas says.
Each of these factors potentially stand the UK in good footing to move forward in its new form without the European Union. And while there are no certainties with Brexit as yet, in the short term it should at least offer those on the leave side a further sense of excitement and perhaps a glimmer of hope for those who voted remain that the M&A future for Britain could be bright.
The Committee finds this measure inappropriate and is unconvinced by the Government’s rationale for introducing such constitutionally significant powers.
Currently section 6(1) of the European Union (Withdrawal) Act 2018 provides that after “exit day”, UK courts and tribunals cease to be bound by the jurisdiction of the CJEU and that retained EU law is to be interpreted in line with any retained EU case law—namely those interpretations of the CJEU which were applicable on or before exit day.
The new powers under clause 26(1) of this bill will empower ministers to require courts to depart from such considerations and instead apply ministerial guidelines that set the tests and considerations as to when retained EU law can be re-interpreted. There is no indication in clause 26 or the Explanatory Notes as to what the content of such guidelines might be.
Baroness Taylor, Chair of the Committee, said: “The Government should reconsider the implications of clause 26 and the potential for significant legal uncertainty if lower courts are to be given the power to depart from previous CJEU caselaw and previous domestic interpretations of retained EU law. The Government should also provide for a sifting process for the scrutiny of instruments made under the bill, as recommended by the Delegated Powers and Regulatory Reform Committee.”
(Source: House of Lords Press Office)
