Brexit, Data transfers, Employment law, Michel Barnier, Negotiating, Trade Deals

Brexit and Magical Thinking

cropped-barnier-and-frost2.jpgBrexit, like employee relations, politics and much else in life, is all too often driven by magical thinking. Magical thinking is the belief that there is a formula, a magic formula that, if it only can be found, will allow all sides to have all they want, all of the time.  It is only ill-will and bad faith on the part of some that gets in the way of the formula being found.

Magical thinking believes that hard choices do not have to be made, that tough decisions on resource allocation can be avoided. Conflict arises from a lack of communication. If only we “listened” more to one another a way forward could be found. It refuses to accept that what you want and what I want may simply be incompatible. Everything can be “aligned” if we just believe and work hard enough. It is at the heart of the belief that there is a “win/win” solution to every problem.

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Brexit, Data transfers, GDPR, Michel Barnier, Negotiating

Saying things in such a way that make a deal impossible

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When I started to write this piece yesterday, I opened it with the following paragraph:

As I write this on Saturday, October 17, I have no idea whether there will be a trade deal between the EU and the UK. I do not know if talks between the two on such a deal are genuinely over. It is not clear if the discussions between the two lead negotiators, Frost and Barnier, scheduled for London this week, will actually go ahead or remain cancelled, after Frost told Barnier on Friday night not to bother turning up unless he had a new offer to make to the UK.

The next morning, Sunday, I read Michael Gove’s article in the Sunday Times. In it Gove accuses the European Union of trying to ‘tie our hands indefinitely’ as he claims the UK has ‘no choice’ but to prepare for a no trade deal split from the bloc at the end of the year.

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Boris Johnson, Brexit, British Government, Customs Union, Data Protection, Data transfers, Michel Barnier, Negotiating, Single Market, Trade Deals

A “No-Deal” Brexit looms ever closer

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On January 1, 2021, whether there is a deal between the UK and the EU on future trading relations or not, significant new barriers to doing business between the UK and the EU will come into existence. There is no possible agreement between the UK and the EU that can eliminate these new barriers and borders because of the UK’s decision to leave the EU’s single market and customs unions.

At best, an agreement will provide for tariff free and quota free trade in goods between the two. But such an agreement would not eliminate the need for paperwork and customs checks, to certify such things as “rules of origin” – where the goods in question, and the components in them, were actually made. Indeed, it has been estimated that UK business will need to recruit at least 50,000 customs agents just to handle the additional paperwork involved in the export of goods.

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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

 

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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, Data transfers, Michel Barnier, Negotiating, Trade Deals

Brexifornia: Checking out but never leaving

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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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