Boris Johnson, Brexit, British Government, Data transfers, Michel Barnier

Brexit No Deal still looks likely

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A week or so ago, I came across this tweet from Simon Fraser, whose Twitter profile says: “Managing Partner Flint Global. Vice Chair Chatham House. Was Perm Sec UK Foreign Office & Business Dept & Chief of Staff EU Trade Commissioner.” A person, therefore, of some considerable substance and experience.

A good moment, after downbeat official comment on the latest #Brexit talks, to remind ourselves just how extraordinary a failure of successive governments it will be if UK leaves EU after four and a half years of negotiation with no agreement on the future relationship.

Which prompts the question: was an agreement ever possible? Or was Brexit always framed in such a way that for Brexiteers “no deal” was always the only “true Brexit”?

But before seeking to answer this question, let’s look at where we are now, following another couple of weeks of inconclusive talks between the EU and the UK. To put it as its simplest, the July intensive rounds of talks, triggered by Boris Johnson’s demand to “put a tiger in the tank, turned out to be little more than dinner in Brussels one week, in London the next.

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Brexit, Data Protection, Data transfers, GDPR

The Schrems II decision and Brexit

 

CJEU 2

The Schrems II judgement of the Court of Justice of the European Union (CJEU) makes the transfer of personal data to the US from the EU close to legally impossible. The Court has struck down Privacy Shield as incapable of providing sufficient protection for the personal data of EU citizens transferred to the US and has severely constrained the use of Standard Contractual Clauses (SCCs) as an alternative way of doing so.

The Court’s judgement is rooted in the belief that there is a significant disconnect between the EU’s emphasis on data privacy as a fundamental right, and the US’s stress on the national security imperative for its intelligence agencies to be able to access data transferred to the US. (See here for a useful summary of the background to the case).

The bottom line takeaway from the CJEU’s decision is that, no matter what procedure is used, it is illegal to transfer the personal data of EU citizens to third countries if that data cannot be protected to the standards that the EU demands when it arrives in that country.

The CJEU, in line with the Charter of Fundamental Rights and the wording of the GDPR, has prioritised data privacy over economic considerations. Whether an appropriate balance has been struck is for European politicians to decide.

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Boris Johnson, Brexit, Michel Barnier, Negotiating

“No-deal” becoming a real possibility

Barnier and Frost2

EU/UK Brexit negotiations ended last Thursday, a day earlier than planned, with both sides citing “significant disagreements”. This was the first-time face-to-face negotiations have been held since the outbreak of Covid-19, with discussions over recent months taking place by video link.

EU chief negotiator Michel Barnier said his team had:

“engaged constructively” in a bid to “get negotiations successfully and quickly on a trajectory to reach an agreement.”

“The EU side had listened carefully to UK Prime Minister Boris Johnson’s statements in recent weeks, in particular, his request to reach a political agreement quickly, and his red lines: no role for the European Court of Justice in the UK; no obligation for the UK to continue to be bound by EU law; and an agreement on fisheries that shows Brexit makes a real difference.” Continue reading

Boris Johnson, Brexit, Michel Barnier, Trade Deals

Putting a tiger in the tank of what?

Tiger Tank

On Friday, June 12, Michael Gove, the senior UK cabinet minister in charge of the Brexit process, said on Twitter:

“I just chaired a constructive EU Joint Committee meeting with @MarosSefcovic

I formally confirmed the UK will not extend the transition period & the moment for extension has now passed. On 1 January 2021 we will take back control and regain our political & economic independence.”

Responding on behalf of the EU, Michel Barnier, said: “The EU has always been open to an extension of the transition period. At today’s Joint Committee, we took note of UK’s decision not to extend. We must now make progress on substance. To give every chance to the negotiations, we agreed to intensify talks in the next weeks and months.”

The UK left the EU legally and politically on January 31 last. The UK no longer has any role or involvement in EU governance of decision making. However, until December 31, 2020, the UK is still part of the EU’s custom union and single market, which means that there have been no disruptions to trade flows in either goods or services between the UK and the EU. It was open to the parties to extent this transition arrangement for up to a further two years, but Gove’s June 12th announcement means that this will not now happen. Continue reading

Boris Johnson, Brexit, Data transfers, Michel Barnier, Negotiating, Trade Deals

Brexifornia: Checking out but never leaving

express

Brexit will never be over.

Brexit may be “done”, but there is no end state, no finish line, just a never-ending, groundhog day marathon. This even appears to be the case with (what we thought was) the signed and sealed Withdrawal Agreement (WA), the one Boris Johnson negotiated with the EU late in 2019.

One headline in the British press on Sunday read:

“Boris wants to fix unfair Brexit deal.”

But was not this the “oven ready” deal that Johnson told the UK electorate just needed to be “popped into the microwave”?

One government source told journalists: “Unfortunately we couldn’t fix every defect with the Withdrawal Agreement last autumn … we’ll now have to do our best to fix it but we’re starting with a clear disadvantage.”

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Brexit, British Government, Michel Barnier, Negotiating

A tale of two speeches by Gove and Frost

speeches

The sting was in the tail. It was the last few paragraphs that really told the story. You couldn’t mistake what the story was. And it is still the story today. It is a never-ending story.

British Brexiteers will never rest content until the EU collapses. Which is why an agreement between the EU and the UK is close to impossible. How do you cut a deal with people who believe your very existence is illegitimate and would happily see you implode?

In 2016, some months before the Brexit referendum, Michael Gove then, as now, a UK cabinet minister made a speech  setting out the case for Brexit. The speech was called:  The facts of life say leave, but most people better remember it for one of its key lines “The day after we vote to leave we hold all the cards and we can choose the path we want.

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