Radar - December 2021 – 9 / 10 观点
The Brexit transition period ended on 31 December 2020. More than four years after the 2016 Referendum, the effects of Brexit were about to be fully realised. The economic and political fallout may take some time to settle, particularly as the waters have been muddied by the COVID-19 pandemic, but we did get clarity on some issues in 2021.
At the eleventh hour, the Trade and Cooperation Agreement between the UK and the EU was agreed and came into effect on 31 December 2020 at the end of the Brexit transition period. While the TCA did not answer all the questions brought into play by Brexit, it did bring clarity in some areas.
For those interested in data, there were sighs of relief as the EU agreed to allow personal data to continue to be transferred without additional protections for a period of four to six months pending an adequacy decision. For more on what the TCA did and didn't deal with, see here.
Following the end of the Brexit transition period, the UK is now free (in theory) to depart from retained EU legislation and from retained EU case law under certain circumstances.
A significant proportion of EU Legislation which was retained in UK law under the EU Withdrawal Act had to be amended in order to make it work in a post-Brexit landscape. In many cases, the revised legislation has not yet been published in full which can lead to having to follow a complex network of statutory instruments to work out the final position. In addition, this law has to be interpreted in light of UK case law and retained EU case law, as well as in light of international treaties.
Another post-Brexit issue in terms of jurisprudence is that the Court of Appeal and the Supreme Court have the power to diverge from CJEU case law as it stood at the end of the transition period. They may do so in the same way that the Supreme Court may depart from its own decisions ie when it is right to do so – a somewhat vague parameter.
Two Court of Appeal cases helped clarify some of the issues as we discussed in April.
The government promised that one of the benefits of Brexit would be the UK's ability to strike its own trade deals.
Over the course of 2021, the UK continued to sign Free Trade Agreements, with countries including the EFTA nations and Australia. The much-heralded agreement with the USA remains elusive despite the change in administration. Some have also suggested the agreements signed to date either simply replicate those which existed when the UK was part of the EU, or are light on detail and park difficult issues.
The Lugano convention governs jurisdiction and enforcement of judgments in civil and commercial matters between the EU Member States, the EEA countries and Switzerland. The UK applied to accede to the Convention in its own right. However, the EC recommended that the EU should not consent on the basis that the UK is not part of the internal market. The European Parliamentary Research Service published a briefing paper explaining this decision in November, concluding that for now, judicial cooperation between the UK and EU will be governed by the national law of the UK and relevant EU Member States and the Hague Choice of Court Convention 2005. Should the EU and UK accede to the planned Hague Judgements Convention, this would then apply although it provides a lower level of integration than the Lugano Convention.
As we know, issues remain. The Northern Ireland Protocol, in particular, remains controversial, among other issues. The EU has even threatened to pull out of the TCA altogether if the UK proceeds with its threat to invoke Article 16 and unravel the protocol. Will we be peering over cliff edges again in 2022?