Brexit

On the 23rd of June, the UK held a referendum on its membership of the European Union. The Leave side won with 51.9% of the vote.

Article 50 process

The process lasts two years. The end agreement must be ratified by the European Parliament (by majority) and Council (by qualified majority).

Impact of Brexit on digital rights

See also: Brexit/Intellectual Property, Brexit/Legislative issues and Brexit/Digital Rights demands

The UK’s vote to leave the European Union means that we no longer have a clear idea what levels and kinds of protection of digital rights we will have in the future. Nearly all the relevant law is European. A lot depends on the kind of model of leaving the EU that the UK adopts.

Issues will include:

• UK legislation implementing Directives;
• EU Regulations that will be transposed to UK law
• UK legislation which will require changes to function
• The enforceability of human rights considerations in information society legislation

Brexit White Paper

See also: Brexit/White Paper

The Government's Brexit White Paper attempts to outline the changes that will be needed as the UK leaves the EU.

The paper identifies many areas where the government expects to continue with similar levels of co-operation. These include data protection and data flows and crime and security. Services seem to be a lower priority for continued integration, outside of financial services and recognition of professional qualifications, with a suggestion that the Trade in Services Agreement currently being negotiated by the EU, US and others could be used as a replacement vehicle.

The government has since termed the relationship sought as a “Deep and Special” agreement or partnership, first coining the phrase in the Article 50 letter to Donald Tusk.

The Court of Justice, arbitration and human rights

The Brexit White paper contains a clear policy to “bring an end to the jurisdiction of the Court of Justice of the European Union in the UK”. The White Paper also has a starting approach that the UK will be leaving the jurisdiction of the CJEU and that any agreements between the EU and UK would be resolved through a much weaker mechanism that did not have direct affect in domestic law. It is unclear that the EU would be able to accept this kind of relationship, especially in regard of crime and security co-operation.

In order for UK law to function, past CJEU case law would have to continue to have relevance in the UK, as many issues have been clarified and fixed over time. It may also be that future judgments about what is effectively the same legislation may continue to be relevant. The relevance of post-Brexit case law to the UK is not dealt with in the Brexit White paper.

Similarly, any agreements between the EU and UK that require that we share the same interpretation of our obligations, from payments through to the effect of particular regulations or laws, would need some kind of method of arbitration.

The existing framework is not static, but is constantly being reinterpreted. While the UK Supreme Court should in principle become the ultimate arbiter in most areas of law, but in many areas this will be hard to achieve, as the arrangements are inherently cross-border.

For example, it is likely that the UK will continue accepting the EU regime for flight delays compensation. This is continuously evolving through CJEU jurisprudence on issues such as technical faults and strikes, and it is unclear how UK courts should accommodate newer rulings after Brexit.

Digital rights will face many similar issues, from data protection to intermediary liability or the making available of copyrighted works, the CJEU is critical for the interpretation of EU law.

The government’s approach appears to be to argue for some kind of ‘dispute resolution’ mechanism. They reference mechanisms in CETA and the EU-South Korea trade agreement as examples. In practice, this may well include CJEU influence or input. Precisely how this works and the extent to which fundamental rights are reflected in its work will be of critical importance. Unlike the CJEU, dispute resolution mechanisms in trade agreements do not directly affect UK law.

A further complicating factor is the role of the Charter of Fundamental Rights which is extremely important from an EU perspective, as a semi-constitutional binding instrument, but controversial for this reason in the UK. Nevertheless, the existence of the Charter makes it hard for the EU to agree to legal commitments where fundamental rights are likely to be impacted but cannot be considered.

The Institute for Government's Brexit and the European Court of Justice paper covers many of the outstanding issues around the jurisdiction of the CJEU in the UK.

The European Convention on Human Rights

In 2016 Theresa May publicly called for the UK to pull out of the Convention, which had been a long time thorn on her side as Home Secretary:

The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals - and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.

Leaving the ECHR would make it much harder to negotiate agreements with the EU.

The Great Repeal Bill

See also Brexit/Great Repeal Bill 2016

The Government has committed to a Bill that will fix a snapshot of EU law into the UK statute at the end of the two year period mandated by Article 50, while opening the possibility for laws to be modified by Parliament from that moment on. The Government envisions that some changes will be made directly by ministers through secondary legislation which receives reduced scrutiny as it is not voted on by Parliament.

Abandoning the single market would appear to signal a regulatory divergence in the future. However, a closer reading of the Brexit White Paper shows the wish to maintain much of the current framework after Brexit. There is an understanding of the need to maintain a high level of EU harmonisation in order to facilitate trade.

While the UK does currently have regulatory equivalence with the EU, before leaving the single market the UK would have to set up an agency to supervise the compliance of UK regulations with the EU market. The EU would then have to approve that agency which would take some time.

Once the Government opens up any process for rewriting EU law, more fundamental changes may be hard to stop. Based on initial meetings with industry and officials, we can expect huge pressure on the Government to reduce regulation, including in many of our core areas.

It is unclear what will happen when EU law gets updated, whether the UK will try to copy EU law in a homegrown process or risk falling out of equivalence, or indeed whether any trade agreement may require the UK to adopt EU legislation in some areas.

It is also unclear what will happen to EU law that is on its way through the European legislative process when the UK leaves the EU. This includes the e-Privacy proposals Regulation on Privacy and Electronic Communications and the Digital Single Market including proposals for Modernisation of the EU copyright rules.

Institutional capacity

Institutionally, there may simply not be enough resources and time to be able to keep up with the EU while maintaining a domestic legislative calendar. The result could be further pressure to simplify regulation, or else copy it from the EU or US.

The UK civil service will also need to expand its range of skills and experience if it is taking on a greater number of competences, including Internet policy.

The current levels of legislative scoping, drafting and scrutiny applied by EU institutions will be very hard to replicate. The Commission has a programme of revision of laws, including considerable internal discussion; the EU Parliament normally sets several committees to scrutinise any new Directive or Regulation. Both institutions, for better or worse, expect a very high level of forward looking technical engagement from interested parties, including lobbyists.

Neither Commons or Lords are currently set up for this kind of role. The Commons is designed to reflect popular interest. Although it does have a select committee system, it rarely makes significant amendments to legislation.

The Lords have a wealth of experience, but this tends to be strongest in taking the long view, and spotting legal, constitutional and principled problems. It relies on individual dedication rather than resource intensive, research-led scrutiny of technical legislation.

The risk that legislative changes fall to either copy and paste regimes, or else passes to UK civil servants with limited democratic input, will remain high until and unless the government signals a desire to significantly reform the UK Parliament.

EU negotiating stance

See also Brexit/EU negotiation stance

The EU Council’s position is that the exit bill and citizens’ rights must be concluded first, potentially followed by an agreement for transitional arrangements. However, they do not envisage a trade agreement to be concluded by the point of the formal exit date.

The EU also envisages a continuing role for the CJEU in administering any agreements concluded especially concerning issues such as EU citizens’ rights.

Thus the UK’s assumptions for the Great Repeal Bill and White Paper seem at odds with the EU’s position.

Other relevant EU work on trade

Marietje Schaake's working document for INTA on EU digital trade strategy covers lots of the issues around digital trade and digital rights

The transitional period

The tItalic textwo year period triggered by Article 50 of the TFEU only needs to cover discussions on the terms of Brexit, including a final bill of €50-100bn, but not necessarily the whole of future relations between the EU-UK. There is likely to be a transitional period, which we believe will be longer than the Government is claiming, where the institutions and regulations extricate from each other with the aim of not leaving gaps.

The complexity of this task is hard to comprehend. There is an ongoing drip feed in the press and social media of cases where a sudden drop would paralyse whole economic sectors. Digital and telecoms clearly require some level of continuity, but other sector such as aviation could fall into chaos if the UK fails to negotiate new arrangements, however unlikely this may be.

One problem for the UK is that according to recent declarations from the chief negotiator at the European Parliament, the UK may have to continue under the jurisdiction of the CJEU during any transitional period.

As a matter of practicality, this seems the most sensible approach, if EU law is still being applied in many areas through this transition.

Draft Withdrawal Agreement

See also: Brexit/Draft Withdrawal Agreement

The EU has issued a draft withdrawal agreement, while Theresa May set out her vision for the post-transition relationship in her Mansion House speech.

US-UK Trade deal

The UK may try to fast track a bilateral trade deal with the US to show that Brexit does not mean isolation, and Trump could be keen as part of his strategy against multilateralism. The UK treaty could provide a template for future deals elsewhere.

There is no information on what a trade deal with the US would look like but from other deals we know that intellectual property, including copyright enforcement, and protecting data flows are priorities for the USA. These developments could affect future data flows, including Privacy Shield.

Once soft negotiations start with the US, there will be issues around equivalence and the UK will likely attempt to play off US against the EU.

EU regulations

Net Neutrality regulations

Summary of the Regulation

Sets out measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union .

General Data Protection Regulation.

Summary

Covers the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and "repealing Directive 95/46/EC (General Data Protection Regulation) "

• See General Data Protection Regulation

Directives

Data Protection Directive [95/46/EC /date issued ]

Brief summary

Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data

• See Data Protection Directive

Related UK legislation [name/date issued]

Regulation (EU) 2016/679 see above will repeal this directive in 2018.

E-Privacy Directive

• See E-Privacy Directive, currently under revision to become the Regulation on Privacy and Electronic Communications. Implementation is likely to take place after March 2019.

E-Commerce Directive

• See Electronic Commerce Directive

InfoSoc Directive (Copyright Directive)

• See Copyright Directive

IPRED (Enforcement Directive)

• See Intellectual Property Rights Enforcement Directive

Other intellectual property instruments

• Trade Marks Directive and Regulation

Passenger Name Records Directive

• See Passenger Name Records Directive

Links

• How digital rights will be affected by Brexit

• What does Brexit mean for the IPBill?