With the passing of the European Union (Withdrawal Agreement) Bill into law
on 23 January 2020, the UK will now depart the EU on 31 January and enter
an 11 month transition period while negotiations over the future
relationship of the EU and UK proceed. During the transition period, EU law
will continue to apply in the UK, as will rulings of the Court of Justice
of the European Union, and the UK will be required to follow the same rules
as an EU member state. In this newsletter, we look at the impact and
influence of Brexit in our key subject areas.
English law of contract is essentially national. As it relates to
commercial contracts, it will therefore not be affected during the
transition period by the UK’s exit from the EU. This means that it will be
unnecessary to update or make any changes to our commercial agreement
templates to accommodate the UK’s exit or the transition period. It is
unlikely that the English law of contract will be affected by Brexit or
amended as of the end of the transition period, but that might depend on
the outcome of the UK’s negotiations with the EU. As and when the position
becomes clear, we will review and make any necessary amendments to our
The Government has published its own information on Brexit which you
should review as part of their overall preparations relating to Brexit.
We also recommend that you review your existing commercial contracts and
consider your plans for future contracts, to see what (if any) impact any
aspect of Brexit might have. For example, you might incur greater expense
in order to perform a contract due to new or increased (import or export)
tariffs or customs checks applying to trading between the UK and the EU,
currency exchange rates fluctuating, or any restrictions on the free
movement of people. In each case, this could affect the overall costs of
buying or selling goods, products, or materials. Aspects of Brexit might
make it more difficult or even impossible to perform a contract; performing
it might be commercially unattractive; or it might produce a different
outcome from that required or expected by one or both parties. The
implications and commercial realities for you of Brexit will be specific to
your business, your particular circumstances, and the nature and terms of
the contracts concerned.
Where you decide that Brexit might have an adverse effect on any existing
contract, you should consider whether to terminate it if in the
circumstances the contract permits it, or whether to seek to renegotiate
it. Alternatively, you might see whether there is a provision in the
contract covering the situation, e.g. a material changes clause which
covers Brexit and its effects. You might also see whether a force majeure
clause in the contract covers any effects arising from Brexit, although
this is unlikely in the case of most force majeure clauses. As to new
contracts that you enter into during the transition period, whilst adding a
Brexit clause to the contract will not solve all Brexit-related problems,
you could consider including a clause to safeguard your business against
uncertainty, e.g. one which allows for rapid termination of the contract or
which provides for some financial adjustment (such as a price change) or
change on the occurrence of a Brexit-related change in the law or some
other Brexit-related change in circumstances.
Current consumer protection law in the UK is derived from EU law. In fact,
in the form of the Consumer Rights Act 2015, it actually surpasses the
standards of protection established in the basic EU provisions. For the
duration of the transitional period, EU law continues to apply in the UK,
and it is possible that there will continue to be considerable regulatory
alignment in this area under the terms of our future relationship with the
EU, although there may also be some divergence.
Even in the event that no deal is reached at the end of the transition
period, UK businesses selling to UK consumers should not, for the most
part, expect a great deal to change. Those selling to EU-based consumers,
however, must keep in mind the potential for regulatory divergence and keep
up to date with developments in EU consumer law.
At present, we do not expect our documents in this area to change as a
result of Brexit; however, we will continue to monitor the situation and
advise you of any changes.
Data protection is currently governed in the UK primarily by the GDPR and
the Data Protection Act 2018. As an EU regulation,
the GDPR will continue to apply for the duration of the transitional
. Ultimately, the GDPR will be written into UK law with certain limited
changes to make it UK-relevant.
Restrictions on moving personal data across borders will also change in the
For the moment, the UK remains subject to EU law and EU rules
. Moreover, even in the event of a no-deal Brexit at the end of the
transition, organisations should still be able move personal data from the
UK to EEA countries unimpeded. In such a scenario at the end of the
transition period, the UK would become a “third country” and those moving
personal data from the EEA into the UK may need to take additional measures
such as relying on the EU Commission’s standard contractual clauses, at
least until the EU Commission makes an adequacy decision on the UK’s data
Further arrangements that may become necessary include the appointment of a
European Representative if your business offers goods or services to
individuals in the EU or EEA or monitors the behaviour of individuals in
the EU or EEA (and doesn’t have a branch, office, or other establishment in
the EU or EEA). Finally, the UK’s departure from the EU will also
ultimately signal the end of the ICO’s status as part of the so-called
For the time being, however, during the transition period, the ICO has
confirmed that “it will be business as usual for data protection”. The GDPR continues
to apply and all existing guidance remains applicable. The ICO remains the
“lead supervisory authority”, and no representatives need to be appointed.
Many references to the GDPR in our document templates already include
non-specific references to successor legislation that may be enacted in the
future. During the transition, we will be working to ensure that the
wording of all data protection references is adjusted in this way.
Our data protection documents themselves will be kept under review
throughout the transition period; however, for the time being, no
significant changes will be required to documentation or to your data
Copyright protection is generally harmonised by international treaties.
Within the EU, it is also governed by a body of EU legislation. UK
copyright law is substantially derived from EU law and thus includes a
number of EU references, particularly those concerning cross-border
enforcement within the EU. In the future, therefore, UK law will be amended
to remove or correct references to the EU and will aim to preserve the
effect of UK copyright law where possible.
UK and EU copyright works will continue to be protected in both the UK and
the EU thanks to international treaties (e.g. TRIPS and the Berne
Convention). As such treaties are independent of the UK’s relationship with
the EU, they are not specifically addressed in the Withdrawal Agreement.
EU trade marks and Community designs (both registered and unregistered)
currently apply in all EU member states. This will continue to apply in the
UK during the transition period. The UK remains a part of the EU
unregistered Community design system during the transition period.
Unregistered Community designs arising before the end of the transition
will also continue to be protected in the UK for the remainder of their
As for European patents, the current European patent system is not a part
of the EU and will therefore be unaffected by Brexit, regardless of any
Database rights currently bestowed by EU law will also continue to apply in
the UK until the end of the transition period. Moreover, any database
rights existing in the EU and the UK at the end of the transition period
will continue to be recognised in both territories for the remainder of
We do not anticipate that our IP templates will change during the
transition period, nor afterward, even in the event of a no-deal end to the
transition. As with all areas in our portfolio, however, we will continue
to monitor developments
As noted above, during the Brexit transition period, whilst the UK will
formally cease to be an EU member state, it will still be subject to EU law
and the rulings of the Court of Justice of the European Union. UK company
law will not be affected during the transition period.
The key legislation governing and regulating English and Welsh companies is
the Companies Act 2006. This includes the types of companies that can be
incorporated, their liability, the role of Companies House, directors’
duties, and the rules on accounts and audit. Whilst some parts of the
Companies Act 2006 are derived from EU Directives such as shareholder
rights, most of English company law is not derived from EU legislation. The
Companies Act 2006 will, therefore, continue in force as at present and the
legal status of UK incorporated companies will remain unchanged. In
addition, UK companies, for the duration of the transition period, will
also not be considered third country entities. As such it will not be
necessary to update or make any changes to our corporate templates to
accommodate the UK’s exit from the EU on 31 January 2020.
The extent of any future divergence from EU law or changes that may affect
UK incorporated companies following the transition period will depend on
the outcome of the UK’s negotiations with the EU. This of course is not
something that anyone can predict with any certainty.
The Government has published their own information on Brexit which you
should review as part of their overall preparations for Brexit.
In respect of Brexit and employment, one of the key considerations is the
future of EU nationals living and working in the UK. EU, EEA, and Swiss
citizens and their families can apply to the EU Settlement Scheme in order
to continue living in the UK after 30 June 2021. The scheme is open now and
is free of charge. If an application is successful, settled or pre-settled
status will be granted. Irish citizens and individuals with indefinite
leave to remain are able to stay in the UK without making an application
under the EU Settlement Scheme.
Under the European Union (Withdrawal) Act 2018, all EU employment law will
be converted (as it was before Brexit) into UK law. The Employment Rights
(Amendment) (EU Exit) Regulations 2019 will make some small technical
changes and introduce new provisions intended to preserve UK-located
European Works Councils but employment law will otherwise remain the same
for the time being. Further down the line, the UK government may take the
opportunity to dismantle EU-derived employment laws, post-Brexit. However,
it’s worth pointing out that some aspects of UK employment law - such as
equality legislation - go further than EU minimum requirements. This means
even if the UK government does decide to repeal some EU-derived employment
rights, there are still likely to be areas of employment law where the UK
goes further than the EU.
Health & Safety
The duty to protect the health and safety of people affected by your work
will not change with Brexit and you should continue to manage risk in your
business in a proportionate way. The HSE has made minor amendments to
regulations to remove EU references but legal requirements will remain the
same as they are now. Health and safety standards will be maintained.
We are continuing to monitor developments and their impact on our Health
and Safety document portfolio, and we will send out updates as and when
During the transition period, as explained above, the UK will remain in the
single market and the UK will continue to follow the EU’s rules. The
purpose of the transition period is to allow the UK and EU to negotiate the
terms of their future relationship.
Currently, no changes are needed to our property document templates. Our
templates in the Property folder can be used as they are from Exit Day,
during the transition period, and after the transition period (unless we
notify you further that updates or amendments are necessary). This is
because there has been minimal intervention from the EU on the laws which
govern property ownership and transactions in England and Wales.
One area of law that has flowed from EU Law and has now become part of
English Law is energy efficiency. Whilst this area of law may be subject to
review following our departure, it is unlikely that existing legislation
will be repealed without a similar regime being put in place due to the
UK’s commitment to reduce greenhouse gas emissions.
We continue to monitor developments and will send out further updates when
The 11 months which follow promise to deliver a wealth of news and
commentary on Brexit and, if the lead-up to this stage is anything to go
by, no small amount of sensationalism and scare stories.
At present, the government appears to be resolute in its intention not to
extend the transition period. The EU, on the other hand, has made it quite
clear that it does not think it will be possible to conclude all necessary
negotiations and agreements within such a short time. A no-deal Brexit has,
therefore, perhaps been delayed rather than avoided, and it will be very
important to ensure that you keep abreast of the latest developments. For
our part here at Simply-Docs, we will do the same and will be keeping you
informed of key developments and changes that impact the various templates
and guidance notes throughout our portfolio over the coming year.
The contents of this Newsletter are for reference purposes only and do not constitute
legal advice. Independent legal advice should be sought in relation to any specific