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Thursday, December 13th, 2018

Legal update: Brexit (no deal Brexit)

The following update has been received from Sandy Adirondack, voluntary sector legal expert: www.sandy-a.co.uk.

To join the legal updates email list, contact legalupdate@sandy-a.co.uk.

Preparing for a No-Deal Brexit

This follows on from update 1822, which provided a bit of background about Brexit, and some general resources. The government’s intention is that agreements should be in place, approved by the UK parliament and all 27 other EU member states, by exit day (currently 11pm 29 March 2019). If this does not happen, they are taking steps to reduce the impact of a no deal “cliff-edge” Brexit.  If you haven’t identified which aspects of your organisation’s work could be affected by a no deal Brexit, with no withdrawal agreement in place, no transition period, and crashing out of the single market (no more free movement of goods, services or people between the UK and EU) and the customs union (no more tariff-free import/export), the resources below may start you thinking about it now. Or if you have started thinking about it already but haven’t got around to making an action plan, you may be spurred into doing it.

 Resources

  • How to prepare if the UK leaves the EU with no deal. HM Government, August-October 2018: https://www.gov.uk/government/collections/how-to-prepare-if-the-uk-leaves-the-eu-with-no-deal. A series of “technical notices” setting out the implications of the UK becoming a “third country” on exit day, with guidance on a wide range of topics, under the following headings. I have starred those most likely to be relevant to voluntary sector organisations.
    • **Applying for EU-funded programmes (including delivering humanitarian aid programmes, European Social Fund grants, Horizon 2020 funding, the government’s guarantee for EU-funded programmes, and more)
    • Driving and transport
    • Farming and fishing
    • Handling civil legal cases
    • Importing and exporting
    • Labelling products and making them safe
    • **Meeting business regulations (including accessing public sector contracts; copyright; trademarks and designs; patents; accounting and audit; providing services including those of a qualified professional; structuring your business).
    • Money and tax (including banking, insurance and financial services; and **VAT)
    • **Personal data [data protection] and consumer rights (including geo-blocking – see separate update in a few days).
    • Protecting the environment
    • Regulating energy
    • Regulating medicines and medical equipment
    • Regulating veterinary medicines
    • Sanctions
    • Satellites and space
    • Seafaring
    • **State aid
    • Studying in the UK or the EU
    • Travelling between the UK and the EU (including mobile phone roaming)
    • **Workplace rights [more about this below].
  • Changes to copyright law in the event of no deal. Intellectual Property Office,  26 October 2018: https://www.gov.uk/government/publications/changes-to-copyright-law-in-the-event-of-no-deal. More detailed than the government’s technical note on copyright in the “Meeting business regulations” section above.
  • Data protection and a ‘no deal’ Brexit. Mills & Reeve solicitors, October 2018.  https://www.mills-reeve.com/data-protection-and-a-no-deal-brexit/.

Brexit: Timetable set for data protection ‘adequacy’ decision. Out-law.com, 20 November 2018. https://www.out-law.com/en/articles/2018/november/brexit-timescale-data-protection-adequacy-decision/.

Two articles on the transfer of personal data between the UK and the EU, and the UK and some other countries.

  • Brexit ‘no deal’ briefing for councils. Local Government Association, October 2018, 5pp plus 36pp appendix: via https://www.local.gov.uk/parliament/briefings-and-responses/brexit-no-deal-briefing-councils. Includes a “civil contingencies” section which mentions a potential rise in hate crime as happened after the referendum; large numbers of elderly UK citizens returning from other parts of the EU; and the impact of trade and currency fluctuations on household and business stability.

Workplace rights

Workplace rights, employment rights and protections coming from EU law are already incorporated into UK law – and in some cases are more generous than EU law – and will remain unchanged in case of a no deal scenario. These include the working time regulations (working hours, rest breaks, annual leave, holiday pay); family leave entitlements; discrimination law; TUPE; protections for agency workers and workers posted to the UK from EU states; employment protection of part-time, fixed term and young workers; and information and consultation rights for workers, including collective redundancies.

Two aspects of workplace rights that will change are:

Provisions for redundancy payments to employees in case of employer insolvency will remain the same for UK, EU and non-EU employees working in the UK for a UK or EU employer. UK and EU employees who work for a UK employer in an EU country may have similar protection in that country, but it will depend on that country’s law.

With regard to European works councils, provisions relevant to the ongoing operating of existing councils will be able to remain in force, but no new requests to set a council or information and consultation procedure can be made after the exit day. Requests made before exit day but not completed by that date will be allowed to complete.