Brexit update: Human rights, pharma and guidance for gambling businesses

By December 15, 2020News

Brexit and Human Rights

It has always been one of the EU’s arguments in its negotiations with the UK for a new post-Brexit transition period relationship that the EU needed to protect itself against “regressive” steps by the UK which could result in the lowering of social, environmental and human rights standards in the UK and which could also impact on “the level playing field” for open and fair competition between the UK and the EU, which the EU has long regarded as a necessary pre-condition for the new relationship.

Two things happened on the 7th December 2020, which might increase the EU’s concerns in this area.

Firstly, the UK Government announced a review of the UK’s Human Rights Act 1998, which effectively implemented into UK domestic law provisions of the European Convention on Human Rights 1950. The 1950 Convention is not as such part of EU law but the very fact that its domestic application in the UK is to be put under public scrutiny may well increase the EU’s concerns about the lowering of human rights standards in the UK. The UK Government, of course, does not accept this argument about the lowering of human rights standards in the UK and points out in its announcement that the UK remains committed to the 1950 Convention and that the review is limited to looking at the structural framework of the !998 Act, rather than the rights themselves.

Secondly, the decision of the Court of Justice of the European Union (CJEU) was published in the case of Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others (Case C 623/117), which, according to The Times Law Report, held that “provisions of national law [in this case, section 94 of the UK’s Telecommunications Act 1984] under which an electronic service provider could be required to provide the security and intelligence agencies with general and indiscriminate bulk communications data, including “traffic” and “location” data, for the purpose of safeguarding national security, were contrary to European Union law”. The retention of such provisions within UK law following the end of the post-Brexit transition period might make it more difficult for the EU to grant “adequacy“ status to the UK as a third country for the purposes of the EU’s General Data Protection Regulation ((EU) 2016/679), with the result that the future transfer of personal data from the EU to the UK after the end of the post-Brexit transition period could be seriously jeopardized.

We shall have to see how these various events play out in the ongoing negotiations between the UK and the EU for a new relationship, bearing in mind that even with a “deal” there may be issues of interpretation on whether specific actions comply with the terms of the “deal”.

Brexit and Pharma

With the increased spotlight on the worldwide pharmaceuticals industry in the light of the race to develop vaccines to combat Covid-19, there has been much speculation on the effect of Brexit on that industry in the UK.

In a brief analysis in The Times of 8th December 2020 on the effect of Brexit on the medicines sector in the context of “a deal v no deal” Brexit, The Times argues that, even in the case of a deal, “the UK will no longer align with EU regulations on medical products. That means that by default medical manufacturers will have to comply with two sets of regulations. However, as part of a deal, the two sides could agree to recognise each other’s standards and approve products checked by each other’s medical regulators. The EU has such an agreement with Canada.”

In the case of a “no deal”, The Times argues in the same article that “there will not be tariffs on medicines even under WTO [World Trade Organisation] rules, but they will be subject to additional checks at the border. Earlier this year, the [UK] government wrote to medicine suppliers warning them that a “reasonable worst case scenario” for a no-deal Brexit was for “significant disruption to trade across the Channel for six months”.

On 7th December 2020, the UK Medicines and Healthcare products Regulatory Agency (MHRA), which will be the UK’s standalone medicines and medical devices regulator after the post-Brexit transition period comes to an end on 31st December 2020, published updated guidance on the UK Government information that is available about medicines and medical devices regulation in the UK.

The impact of Brexit on the intellectual property rights of pharma businesses will also need to be considered, although it may be that patent rights may not be much affected by Brexit because the European Patent Convention (EPC) is not an EU instrument and UK pharma undertakings should still be able to apply for a patent seeking protection in EPC member states, including the UK.

The implications of Brexit for pharma businesses are complex and multi-layered and will need to be studied closely by those involved.

Brexit and Gambling

On 11th December 2020, the UK Government published on its Brexit “Transition” website some guidance notes issued on the same date by HM Revenue & Customs (HMRC) on the UK’s General Betting Duty, Pool Betting Duty and Remote Betting Duty pointing out the need, from 1st January 2021 following the end of the post-Brexit Transition Period, for most non-UK based gambling businesses operating in the UK to appoint a UK representative and in some cases to provide security to handle their obligations towards HMRC in respect of these gambling taxes.

This is a change from the position prior to 1st January 2021 when the UK was either a member of the EU or able to benefit from the post-Brexit Transition Period at which time EU-based gambling businesses operating in the UK but based outside the UK had no obligation to appoint such a representative or to provide such security.

The guidance notes state that in any event UK-based gambling businesses will not need to appoint such a representative (or by implication to provide such security) nor will gambling businesses operating in the UK need to do so if they are based in Norway, the Faroes, Iceland, New Zealand or South Africa or in a jurisdiction (such as Gibraltar and Malta) which has an agreement with the UK to enforce gambling debts.

The fact that these guidance notes are included on the UK Government’s Brexit “Transition” website is an example of the broad and deep implications of Brexit for business life in the UK following the end of the post-Brexit Transition Period, regardless of whether there is a “deal” or “no deal” in respect of the UK’s post-Brexit relationship with the EU.

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