Legal & Government Affairs Update Issue 7 - 2017
DEXEU position papers and more Brexit controversy
The Department for Exiting the European Union (DEXEU) has published its latest position papers ahead of the third round of Brexit negotiations.
Published on 21 August 2017, the papers outline the UK's negotiating approach to goods on the market and to confidentiality and access to official documents. These papers follow the paper published on 15 August 2017 in respect of the UK's future customs arrangements with the EU.
Looking at these papers in turn, the first position paper on the UK's future customs arrangements discusses options for new customs arrangements between the UK and the EU in the future partnership. In particular, the 16 page paper details two broad approaches; both of which take the UK outside of the EU customs union.
The first option sets out a "highly streamlined customs arrangement" under which the UK and the EU would essentially trade with each other as third countries but with a simplified and efficient customs processes in place. A more innovative alternative is a "new customs partnership with the EU" whereby the UK would mirror the EU's customs approach at its external border, thus removing the need for the UK and the EU to introduce customs processes for goods entering the EU. Whichever option the UK pursues, the UK has suggested that it will remain in the EU customs union for a transitional period to allow any such arrangement to be agreed.
Turning to the next paper, DEXEU sets out four key principles for ensuring a smooth and orderly withdrawal from the EU in regard to the availability of goods. These principles are aimed at preventing bureaucracy and maintaining a close trading relationship. For example, DEXEU is keen to ensure that goods and services can continue to be delivered without additional requirements or unnecessary restrictions, whilst maintaining the highest standards of consumer protection and safety.
Finally, DEXEU has published a paper outlining the importance of ensuring that both the UK and the EU remain bound by confidentiality obligations post Brexit. This is to protect information exchanged whilst the UK was a Member State.
The position papers will be viewed as a positive step following criticism from the EU that the UK has no formal position on a number of key issues. However, the papers come against a backdrop of increased debate as to whether Brexit will in fact boost or hurt our economy.
Readers may have heard about Patrick Minford's (possibly dubious) claims that the UK economy will gain an estimated £135 billion per annum from a full 'hard' Brexit. Minford, the Chair of Economists for Free Trade and Professor at Cardiff University, has published an introduction to his forthcoming report, From Project Fear to Project Prosperity. In response, fellow economists have been quick to criticise Minford's projections, with some calling his report "laughable" and "crazy". Do have a read and make your own mind up - http://www.economistsforfreetrade.com/wp-content/uploads/2017/08/From-Project-Fear-to-Project-Prosperity-An-Introduction-15-Aug-17-2.pdf. Such reports will always spark fierce controversy. We note that while many leading economists are very dismissive of Minford's views, we are living in a world that is in part a product of his imagination, such was his influence on the Thatcher administrations.
Whichever side you take, the public debate will rumble long into the Brexit negotiations to come. It is at least a welcome relief that that our political leaders appear to be forming a clearer sense of direction as to what Britain wants out of Brexit. How this plays out in the forthcoming negotiations, we shall have to wait and see.
Case Law Updates
High Court grants FA Premier League further injunction to block streaming websites
Earlier this year, the High Court issued a 'live' blocking order under s97A of the Copyright, Designs and Patent Act. The first of its kind, 'live' blocking orders are 'live' in the sense that they are limited to when the relevant content is being streamed. In this case, the order was intended to block access to servers being used to deliver infringing live streams of Premier League games. The blocking order ran from 18 March until the end of the 2016/17 football season on 22 May 2017 and was viewed as a success, with over 5,000 server IP addresses blocked.
With the 2017/18 football season now well underway, the High Court has granted the Premier League a second injunction for the duration of the season. This means that internet service providers (ISPs) such as Sky and BT will again be required to block specified providers of infringing streams on a 'live' basis. It will be interesting to see whether the order remains an effective method of tackling unlawful streaming.
Consultation on Government's plans to implement the Security of Network and Information Systems Directive (NIS Directive)
In response to the growing cyber security threat, the European Commission has agreed a Directive aimed at increasing network security within the European Union.
Following this, the Government has published a consultation seeking views from industry, regulators and other interested parties on its plans to transpose the NIS Directive into UK legislation. The consultation sets out the Government's proposed transposition approach and asks a number of policy related questions.
The consultation closes on 30 September 2017 and further information can be found at: https://www.gov.uk/government/consultations/consultation-on-the-security-of-network-and-information-systems-directive