Will they dump  the upload filter?  Moves are afoot in the European Parliament to protect free speech and reject the imposition of upload filters  in two key pieces of legislation before the current sitting of the European Parliament. The Copyright Directive has been stalled by the Council, with a scheduled trilogue cancelled. Meanshlie, amendments to delete requirements for proactive monitoring in the Terrorism Directive are being tabled in two committees.

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We cannot just draw a line around these islands and go back to a time past. In 1973 when Britain voted to join what was then the EEC,  the email had only just been invented and the Internet wasn’t even conceived. In 1992,  the Single Market was established and the Internet went commercial. From the mid-1990s, low-cost flights came in and little bags of salad leaves became the norm in our supermarkets. Since then, business has changed to an inter-connected model,  underpinned  by electronic communications and laws designed to support cross-border trade. Standards matter, not just within State borders, but across borders. The rupture from the Single Market created by Brexit in any form  will have massive consequences for industries,  both manufacturing and services, that have based their business model on the EU legal framework.

This article – part 1 of 2 – explores the how  withdrawing from the EU Single Market will result in  a dual-compliance regime.  It draws on EU Preparedness Notifications and UK government ‘no deal’ notices, as well as announcements, media reports and statements from a range of British-based businesses.

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As we saw in part 1, the ways that Brexit rips through business models are quite complex. Travelling back in time to a simpler era in 1973 before the UK joined the EEC, does not seem like a practical option for business. Cross-border trade, which was the exception back then, is now the norm. People get on planes for one-day conferences and business meetings. The simple email that was conceived inthe early 1970s  has itself been outgunned by the smartphone app. Rules are needed to govern these new practices that in themselves generate unforeseen legal complexities.  Being outside the EU will not suddenly drop the UK back into a simple system where it can pull up drawbridge and act as an island. There will be too many wires left dangling.

In part 1 of How Brexit Rips Up Business Models,  we considered the effects of a post-Brexit dual compliance regime. Here, in Part 2,  we look at some specific aspects  of  Brexit-imposed  changes to cross-border trade and trade in services.  

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How does an obscure article in the Lisbon Treaty obfuscate Britain's efforts to formulate a post-Brexit relationship with the European Union? And what does this have to do with dead parrots? 

It was Margaret Thatcher who famously replayed Monty Python’s  ‘dead parrot’ sketch at the Tory party conference 28 years ago in 1990. This week, as the Conservative Party gathered in Birmingham for its annual get-together,  it would seem a dead parrot is once again at the centre of the debate.

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The British government’s White Paper for a new UK -EU partnership edges its way around the strict red lines of a hard Brexit in order to address the complaints of business and keep jobs in this country.    It does look rather like a bespoke form of trade agreement. But in trying to frame the  proposal such that it could be accepted by the deeply divided Conservative Party,  the paper seems to please no-one.  So how should we read it?

This post considers whether the White Paper addresses  the concerns of British businesses. It suggests  that the ‘common rulebook’  may be a problematic metaphor in an inter-connected  21st century business world.

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Galileo, a niche satellite technology programme,  has escalated to the top of the Brexit political agenda as  Britain and the EU  wrangle over access to it.  There is a thrilling  tension as the two have become locked in an  inter-governmental conflict overhung by industrial threats, against a  backdrop   of  science-fiction-like  technologies. Galileo symbolises the power of space communications for economic and security policy. And now the EU has signalled a red light to  Britain’s key demand for full access to a next-generation encrypted service.  

This analysis considers the EU’s new space programme proposals against Britains demands for inclusion in Galileo’s secure PRS service. It draws on the EU Proposal for a Regulation establishing the space programme  and the British government’s Technical Note: UK Participation in Galileo, with additional input from the just-released EU slides on space-related activities.

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A European satellite project unexpectedly finds itself at the uncomfortable end of the divorce wrangles  between  Britain and the EU. It illustrates the  direct and tangible  consequences of the government’s solid red lines, which put contracts and industry growth at  risk.  What is really at stake?  This article draws on evidence given by the space industry to the  House of Lords Select Committee on the European Union, and examines the Co-operation Agreements of Norway and Switzerland on Satellite Navigation Programmes. It views them through the prism of  the draft UK-EU  Withdrawal Agreement.

*Update 24 April 2018 - the Financial Times is now reporting an 'escalating row' between London and Brussels over Galileo.*

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<<On the publication of the draft of the entire EU Withdrawal Agreement, this article investigates  the Transition chapter and how far Britain’s influence could be  written out from the  very start. The analysis is based on the text published by the EU, and the British negotiators text which has been circulating online.>>

Will Britain become isolated and not influential, to paraphrase Sir John Major's words from his speech today?  There is one aspect of Britain’s proposed Transition out of the European Union that risks being overlooked. Britain – its  government, businesses and individuals such as academics, NGOs and researchers   -  could be excluded from EU decision-making bodies, agencies  and expert groups from 29 March 2019 during the Transition period. As others have already said, Britain risks becoming a rule-taker, but this goes further. It means Britain stands to lose influence not only in  law making and central banking, but regulatory and standards bodies, scientific and security agencies, and a plethora of smaller  groups that input to policy-making.

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Brexit means that Britain risks losing access to two vital EU satellite programmes. They deliver key communications technologies to power  Mrs May’s vision for a 4th  industrial revolution. It’s a failure to join the policy dots.  Has the government lost the signal?

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The European Parliament is not at the negotiating table, yet it does have ways of leveraging influence over  the Brexit negotiations. Why does its position matter? Especially now that the British  Parliament has narrowly won the right to vote on the final  Brexit deal.

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The irony of Britain leaving the European Union is that that other side is driving.

The British have been forced  to accept that trade negotiations will not run in parallel with the 'divorce' talks, that the negotiators wll meet 4-weekly, that the default setting is 'transparency'.  How is the EU is able to impose terms, when this should be a joint negotiation? It is a manifestation of power play in an imbalanced relationship.  This article investigates the power relations of Brexit and suggests that the EU is able to wield 'structural power' in order to shape choices for the British.

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The Closing of the Net   (Polity Press 2016)

"takes the pulse of the open web" Journal of IP Law & Practice

PAPERBACK & KINDLE FROM £15.99

If the open Internet is an essential precondition for democracy,  should governments or corporations be allowed to restrict it? This is the question at the heart of my book ‘The Closing of the Net’ and it discusses the backdrop to the political controversies of today around such issues as fake news,  terrorism content online,  and mis-use of data – controversies that result in calls for ‘responsibility’ by online companies. The book argues that any regulation of these companies must enshrine public interest criteria, which must balance the competing rights at stake.

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