Michael Luckman: Welcome to Gowling WLG's webinar on Brexit. This is an audio webinar, so I think one of the disadvantages to those of you who are listening in, and there are quite a few of you - I think we're billed to have some 300 joining this webinar - is that you are missing the collective looks of shock and surprise on the assembled panel who are going to share their views on what last night means for all of us.
Obviously the main purpose of this webinar is to encourage audience participation, so those of you who are listening in should have in front of you a webinar player which will have volume adjustment and full screen options on the bottom right hand side. The thing I would really encourage you to look at is the Ask a Question tab because what we really want to generate is a raft of interesting questions that our panel can reflect on and perhaps help answer.
Questions, when they come in, will be allocated with your name so if you want to ask a question anonymously I think the thing to do is, at the beginning of your question, just put in the word anonymous at the start and then we can make sure that is respected when the question is asked. We hope to get through most of the questions but there may well be one or two that we miss on the way through. We will be picking those up and follow up with you after the webinar if that is OK with you, but probably just to set the scene while questions are coming.
It is probably just best to remind ourselves well what does happen next, what is the framework, what is the mechanism by which we exit, perhaps what are the options after we exit, what are the kind of relationships and treaties we can make. I am going to start with Kieran Laird from our Public Regulatory Team who has been very much involved in the mechanics of exit. Kieran.
Kieran Laird: Thanks Michael. Good morning everyone. The first thing to remember is that legally nothing has actually changed this morning. We have woken up to a leave result but all of the EU law that we had yesterday still remains in place. Our Courts will still have to apply the treaties and the Court of Justice of the EU will still have to apply those treaties and anything brought before it also. That is going to remain the position for a few years to come in fact, so although there may be political and economic short term shock, there will not be much change legally over the next year or two and that is essentially because of the way the withdrawal process works.
The first thing that the Government would do would be to notify the European Council of an intention to withdraw from the European Union. That is still under Article 50 of the Treaty on European Union. Vote Leave over the last few weeks and months has floated the suggestion that there might be alternative ways to leave, for example in the same way that Greenland did so. However, to be honest politically and for various legal reasons they simply are not credible, so I think we are going to go for the Article 50 process. Now we do not have to immediately give notification to leave and the Prime Minister said in his resignation speech this morning that it would be for the new Prime Minister following his or her election in October to do so, so we are not even going to get started on this process for a couple of months.
Once we do give notification to leave we will then enter into a period of intense negotiations with the European Council, probably from the European Commission actually. What we will be negotiating is a thing called the withdrawal agreement, which will cover the terms of our exit from the EU and our future relationship with it. Now there is a timeline in which we are going to have to do that. Under Article 50 if we do not negotiate a withdrawal agreement and have it coming into force within two years, we will essentially leave the European Union without any alternative mechanism in place.
My colleague, Bernardine is going to come on in a few minutes to talk about what the options are but that would essentially mean that we reverted to the World Trade Organisation (WTO) rules so that two year period is extendable by agreement with all of the other European countries and to be honest it is probable that we will actually extend that period. Vote Leave have said that it will take about four years to negotiate a withdrawal agreement but to be honest an awful lot of other academic and Governmental projections put it between somewhere like four to nine years so we are not going anywhere fast, I have to say, with the law from the European Union remaining in place at least for another four years.
Michael: Thank you Kieran. We have got some questions coming in but just quickly before we start picking those up. Bernardine, who spends a lot of time in our Brussels office, what are the potential options?
Bernardine Adkins: I think it is useful to look at the different options because not only will it govern our relationship with the EU, it will also govern our relationship with what we call the Acquis Communautaire, in other words the existing EU rules that we have in our legislation. There are 75 possible models which have been canvassed from one extreme as to be in the force of a EEA agreement such as Norway and Iceland. That is likely to be unpalatable because essentially you are agreeing that the UK will be agreeing to be part of the EU trading block, but staying outside its formal structure for adoption of legislation. Essentially you are agreeing to the four freedoms, which include the freedom of workers which may be currently unpalatable and also it requires a sizeable contribution to the EU budget.
The other extreme is to be within the WTO where you will simply be another country viz-a-viz the EU such as India or Brazil, which is unlikely to happen. There is also a school of thought at the moment going through because the more recent rounds in the WTO with the EU and the UK have been agreed. The UK has agreed those rounds under the auspices of being an EU member and it's quality as a state is changing so clearly it's a question whether the UK will go back to square one within the WTO and have to engage in a series of rounds of agreement not only with the EU but also with its other trade partners as well.
So those are the two extremes. In between there we have essentially the Swiss model which I think is probably the most likely. The Swiss did originally want to be in the EEA negotiating extremely hard, but at the last minute pulled out. So what we have with the Swiss is a bundle of bilateral treaties which encompass some 100 different agreements, which primarily allows us to grant the Swiss access to the single market and they deal with such issues as freedom of capital, financial services, environmental operations and importantly also freedom of persons. So that is very much a possibility, sort of an a la carte type of agreement on a bilateral basis. The downside of that you have static agreements, bilateral agreements which are set to be frozen in time and you do not have a public dispute mechanism.
The other option is a UK EU free trade option, where essentially you just simply get into access to free trade including for financial services. Very fluid, not quite sure as to what that would encompass but it would be unlikely to accompany such things as the free movement of goods.
Then last, but no means least, is the Turkish option which is the good old fashioned customs union which would not extend to professional services but quite cheap in the sense that you do not have to contribute to the EU budget. Querying what it would look like because of the huge disparity in bargaining power between the EU and the UK and we would have tariffs then put on to UK goods, which ranges at the moment. The economic external tariff at the moment is 10% for cars, 11% for clothing, 15% for food for example.
Michael: OK there are some people with hearing issues. Just remind the speakers if they can speak up a little please. We have got a couple of specific questions coming in slightly tied to that point. Obviously there is quite a bit of legislation on the stocks at the moment. Peter Hall, who is our IT person, working in data protection, Martin Chitty in relation to employment. There is some existing stuff floating around. What is going to happen to that, the Data Protection Regulations is a very good example.
Peter Hall: OK so my best prediction on data protection is that we will end up with something like the new set of regulations in place anyway and the reason I say that is, if you look at the EEA countries for example, most of those have laws in line with EU data protection laws and there are good reasons for that. For example on things like data transfers, it makes a lot of sense to have laws aligned to allow free movement of data and therefore I think my best prediction on data protection would be that we will end up with something like the GDPR in place.
There may be some room for amending or lightening some of the burden of that regulation in our laws, but I think we will end up with something broadly aligned to the new regulations in place so my view for businesses on that particular area is to keep looking at introducing what you need to comply with both in terms of your internal policies and your contracts over the next two years, on the assumption that we will end up with something looking like the GDPR anyway. And obviously we will know more about that as time progresses over the next two years.
Michael: Kieran I think you had a comment you wanted to add to that.
Kieran: One of the interesting things that touches on this question is the Vote Leave proposal for a European Union Law Emergency Provisions Bill within the lifetime of this current Parliament. This was part of Vote Leave's withdrawal plan and what they are essentially saying - and it remains to be seen whether they are actually going to go through with this - is legislation limiting the effect of European Law within the UK while we negotiate the withdrawal agreement and that has certainly been proposed.
Whether or not it's actually going to happen or not is another thing, because there are massive legal and certainly political implications of that. It will, for example, place our devolved administrations in quite a difficult position and will also place our Courts in quite a difficult position. But from the purely practical point of view, what we would be doing with a bill of that nature is to effectively breach our obligations in international law to the EU during the course of negotiations for our ongoing relationship with it, and that may not be the best idea proactively. So we hopefully will not see that sort of domestic legislation in the interim dis-applying these EU law provisions.
Michael: Thank you very much. Martin, we have got a question here about references to EU law. There are tonnes of these in contracts, the application of EU law in contracts. There are tonnes of employment law knocking around and particularly around the Acquired Rights Directive. I mean what would a reference to "including EU law" mean now do you think in your context?
Martin Chitty: I think it is an interesting question and one that depends on the specific terms in the contract. If you have got a reference to the Acquired Rights Directive, we are still subject to the Acquired Rights Directive in as much as it is directly enforceable in a private law contract. If you made reference to the Transfer of Undertaking Regulations which is the UK implementation of the Acquired Rights Directive, they are in place and they will be in place until they are appealed, whether we are in the EU or not. And there's quite a lot in the Transfer Regulations which is not actually derived from the Directive itself, it is something which can be referred to as embellishment or gold plating depending on how you look at it. So service provision change provisions are not from the Acquired Rights Directive, they are an entirely English law or UK law concept.
So, in the short term, nothing is going to change and even if and when, all of this is resolved, is the service sector going to find that actually the service provision change provisions facilitate the operation of the market because there were massive redundancy costs on exit. So, commercially it may be that the parties migrate from a position where they are making reference to the transfer regs. They simply have an agreement in the contract that this is how it is going to be approached.
The question has come in about posted workers and whether an organisation sending people across Europe to work for short periods is suddenly going to find its business model affected. I would say, in the short term, legally it should make no difference at all unless and until the law actually changes. Practically, it may be, that the local market practice becomes more resistant, the posted workers being sent in on the basis that it is less likely that anything would be resolved other than at a very local law, local Court level if somebody challenges the proposition, So it may be that because this referendum has come down on this side of the vote that actually doing business in Europe day-to-day on a practical level rather than a sort of macro political level becomes more difficult.
Michael: One of the areas where I think we have got used to EU law applying is in relation to procurement Sarah. I just wonder what you think is going to happen in relation to application of procurement rules?
Sarah Sasse: I mean it's a bit similar to the position with the Acquired Rights Directive really because most of the procurement regime has been implemented into UK law through statutory instrument, through regulations. Actually if you look back over the last sort of 20/25 years through the history of procurement, the UK had compulsory competitive tendering, for example, a requirement to go out and compete for contracts before we were actually required to do so as part of the free movement of goods and services principles. So I think my analysis at the moment is clearly there will not be anything changing soon because we have got those rules into UK law a bit like the TUPE provisions, actually the UK has gone further than it is required to do under the EU Directives.
We have got the Lord Young reforms which were implemented in the Regulations last year and actually, as Bernardine said, we really need to wait and see what models the UK is it going to adopt in terms of are we going to have a deal akin to Norway or is going to look something more like Switzerland. As I understand those deals, they often have built into them requirements around free movement of goods and services and actually the procurement rules are just one implementation if you like of that broader principle. So I am afraid for all of those who thought that you might be able to take this opportunity next week to issue tenders and not have to follow the rules I am afraid that is not really going to be the case.
Michael: OK I just wonder if I can sort of straw poll around the various members of our panel here. We have just had a wonderfully broad question coming in which is perfect for everyone to answer which is in relation to your own particular areas. If you were advising your client's businesses, what practical steps could they take to prepare for the UK exiting the EU? I would probably start with Dave Lowe who is our Commercial Contacts expert.
David Lowe: Thanks Michael. I mean the first thing on the commercial contracts that people should be doing today, next week is considering the immediate aftermath of this vote, massive changes in the currency markets for example, what does that mean for your contracts, imports more expensive, exports will be cheaper. How do your contracts manage currency exchange risk and of course everyone will be looking at current transactions which have not been completed to decide actually, in this new uncertain world, do we want to complete it? In the short term possibly subject to those currency exchanges, but do you enter into say a five year exclusive distribution agreement in Germany right at this moment when actually you have a difficulty to predict what the environment will be like?
After that immediate aftermath the next step must be to consider people's business models. To what extent are people's business models potentially affected by this? Financial services being a good example where European Financial Services Regulation has a big impact both in burden but also opportunity and what should people be doing to guard against that? I am sure there will be a lot of commentary in different sectors about that and whether you should set up a subsidiary in Dublin or not.
And then looking further down the track there will be considering what's in the contracts, I am afraid I think people need to be going through the same thought process they were going through in 2008 and 2009 before we had a recession where there was considerable uncertainty, what happens if people go insolvent, what happens if people in my supply chain go insolvent, how are my contracts set up to deal with that? There will be the interesting wrinkles for the longer term contracts about what is the impact on European Distribution Agency Licencing arrangements which might refer to exclusivity in the EU or may be drafted to take account of the EU anti-trust law and of course IP protection is also going to be an interesting issue.
Though of course looking further ahead you have also got to think about the opportunity. If we believe the Leave Camp, we are hopefully opening ourselves up to a huge range of future opportunity and international trade and therefore considering what those options and how to embrace those, that must be a key requirement for anyone in business.
Michael: OK. Tom Price is one of our litigation experts. I mean we have all got comfortable with the idea of enforcing judgments across Europe. What is Brexit going to do for the litigators?
Tom Price: Well you are mainly concerned with how easy it is going to be to enforce the contract as far as dispute resolution is concerned that really breaks down into whether you want to arbitrate or whether you want to use the state Court. The state Courts if you are talking about around Europe, that is where the uncertainty potentially now lies, but I actually think it is not going to mark any particular change from what we had had to date.
At the moment we have the EU judgment regulation for easy enforcement around Europe, but even if we were to effectively exit that, I think it is highly likely we would just replace it with the parallel convention that Switzerland has at the moment and other EFTA countries and that is a very similar regulation so I think in the medium to long term actually probably very little difference, the fall back is that arbitration has not been touched by EU legislation nearly as much and to be ultra-safe I guess an arbitration clause might be the safest bet. That would be my view at the moment.
Michael: Just one issue on litigation before we carry on going round the room on that, but the question has arisen as to the UK being naughty in the period between now and exit and the likelihood of the commission taking infringement proceedings against us. I am guessing Bernardine, this is very much your area, can they still do that but do you think there will be the political practical will to do this, does it make sense?
Bernardine: Looking at it pragmatically, it takes so long to start the infringement proceedings against a member state when we had the EU, by the time the Commission gets moving on that, but in principle yes they can be had up for infringement but that is going to be a bit of damp squib, I think personally. By the same token it also means that in this interim period the UK is still a fully-fledged member of the EU and it will sit at the table when they are crafting EU laws and EU norms. The query is to how much you listen to the UK given that it is now in the waiting room is another question altogether.
Michael: We tend to rely on what I might call UK real estate as being the stable partner in all this Brexit excitement, but I cannot imagine that the real estate market is going to get off scot-free with what is going on with Brexit at the moment, must have supply chain issues and market issues. Richard…
Richard: No I agree with you Michael. I think the property industry is probably just going to pause and get its head around some of the ramifications in all this. I think putting a positive spin on it, certainly this will create buying opportunities for certain of our clients and a number of institutional clients are very cash rich at the moment. So if we see a big shift in asset prices then that is good for the industry in terms of purchasers but undoubtedly various sectors of the property industry not least the house builders will be pausing to consider what is going to happen. One of the things that concerns me particularly is with the effect on the pound, if the Bank of England decides to raise interest rates to defend the pound you can imagine an instant hit on the mortgage market and that of course will affect the buyers of the plots significantly. So I think probably we will see a period of most of the major players pausing, watching the initial turbulence settle and then making decisions. During the meantime, what we are trying to do is introduce clauses into various of our deals, giving our clients the ability to pause and reconsider or maybe condition deals so that we can make a decision as to what we want to do when things have calmed a bit.
Michael: Thank you. Sunil, head of our corporate team and obviously we get heavily involved in a number of cross-border transactions and deals. Any immediate impact for your team...
Sunil Kakkad: I think inevitably, Michael, business hates uncertainty and we have seen the pound drop to a 30 year low, FTSE dropped 8% then picked up. A bit like Richard's comment about real estate I suspect that a number of our clients are already in the midst of transactions particularly cross-border transactions will pause for thought. I think they will want to see a degree of calm return to the market before they pick up the pace on those transactions. In terms of opportunity, I suspect for cross-border transactions where it is inward investment into the UK, is just the relative weakness of sterling against other currencies makes the UK an attractive destination.
I think in the medium term there will be question marks around the attractiveness of the UK as an entry point to the EU and I suspect that a lot of investors will be looking at positive messages coming out about how our relationships with EU member states are going to be renegotiated. I am sure that we have more or less the same arrangement as currently prevails. I think the one area of business where I suspect we will feel immediate impact is around finance. I think eyes will be firmly focused on the MPC meeting in July where the Governor decides to peg interest rates at that meeting.
Michael: Fantastic question up there for you Sunil on insolvency. I will give you a couple of minutes to think about that one while I move on to Martin. I was listening to the radio this morning. I've got to the age as you know here I am listening to Radio 4, it will be Saga Radio next but we had the unions on there this morning saying that we really must defend workers' rights. European Employment Law has always been very pro-employee - what is going to happen?
Martin: Well, again we come back to the point that nothing is going to happen today or for some years from that point of view, and it is true to say that there are a lot of the more progressive pieces of employment legislation, particularly on the social policy front, which derive completely from EU law.
The way we tended to categorise it is that there are some things which will change, which will stay in touch because they are underlying UK legislation - so unfair dismissal, principles of sex and race discrimination, equal pay, things like that, they have nothing to do with the EU.
There is definitely a category there of issues which are on the endangered list. So much of it depends on the political landscape here, who is in Government and, certainly, were it a Tory Government going forward, which end of the spectrum the Government is controlled by, but on that endangered list would be things like large parts of the Working Time Regulations, particularly the 48 hour opt out, so the 48 hour working week, rest breaks, paid waiting time and the way in which we calculate holiday pay.
It all comes out of those regulations and people seem to forget that there is no underlying legal entitlement to paid holiday in this country other than through the Working Time Regulations. The issue is how you calculate it.
Other things might be around collective consultation on redundancies. There is nothing in English law other than the Collective Redundancies Directive which compels the UK to do that, so it could be that the Government is minded to repeal all of that. Query is that politically deliverable?
In the same way, the Agency Workers Directive is not massively popular, entirely EU-based, and probably the top of the hit list for many on the Leave side. It is interesting that one of the Leave side's arguments was that such is the embellishment of employment rights under the EU that there should be a natural opposition towards it, and that seems to have been supported by many of those, as natural Labour supporters, who seem to be voting for a reduction of their own rights. But nothing is going to happen in the short term.
There is no need for employers to change anything that they are doing today or tomorrow and, unless and until we see how this pans out, and Kieran's point about the prospective repeal effect within the European Communities Act in all EU-derived legislation, I think it is massively, massively unlikely and not deliverable in any way at all.
Michael: Kieran, in your neck of the woods, are you going to see, do you think, a massive uptick in what I call regulatory work? There is going to be a whole raft of new legislation that is going to need absorbing, I would guess.
Kieran: Yes I think it is an interesting question, just how we are going to disentangle our domestic legislative landscape from that of the EU, so I mean what we are going to have to do is go back through all of the secondary legislation, primary legislation we have adopted to bring into force EU laws and consider what of that we want to amend, what we want to retain wholly and what we want to scrap altogether and that is a massive undertaking Michael.
So, for example, between the inception of all of its predecessors and up until 2012, the EU had adopted over 100,000 legislative Acts and we are going to have to go back and trace through how they impact on our domestic legislation, and we need to figure out the policy that we want to adopt in relation to each of the sectors they touch upon and then legislate to give effect to that policy.
Not all of that will be within the competence of the Westminster Government. Some of these issues will fall within the competence of the devolved legislation outside of the devolved legislators so, for example, in terms of environment that is actually a devolved matter and alone, traditionally what we have seen is the nations in the EU taking a similar approach by virtue of the fact they have to accord with EU law. If we then take that away we could see divergence in areas such as that.
I mean, whenever you look at high regulated sectors, it will depend on how the Government of the day - whenever it gets round to looking at that particular sector - wants to proceed, and it also depends on the history of the sector. So, for example, in energy we had energy regulation in the UK long before they thought of it in Europe and they pretty much adopted that model that we had, so we are probably not going to see an awful lot of change in energy and regulatory terms.
Something like telecoms, however, the other end of the spectrum there was a massive European impact. We used to have a licencing regime for telecoms in the UK and it was only by virtue of European law in 2003 where we scrapped that. Now, given the fact that we are over a decade without a licencing regime, it might be that we do not actually go back to one.
It all depends, as I say, when the Government gets round to looking at these various sectors and how then it wants to proceed based on where we are at the minute.
Michael: Sarah, you do a fair bit of what I might call Central Government contracting, do you see that element of the market being liberated by what is going on or plunged into a state of confusion?
Sarah: I mean, I have already spoken about the procurement regulations where I think they will not be changed anytime soon, because those are part and parcel of English law, but actually if you look at the wider sort of public sector culture I suppose, and requirements to make sure that you are obtaining value for money, accountability etc. again I don't think those principles are going to change fundamentally.
It is interesting if you look in the university sector, where actually they have recently decided that some of the universities are actually moving outside the scope of procurement rules, they are voluntarily deciding that they still want to follow the rules because actually they do demonstrate that, if you like, they are appropriately spending the money that they have got. So I think it comes back to the accountability pieces as much as anything in terms of the broader policy context.
Michael: Andrew, I mean you are involved in what I might call board level corporate risk/health and safety, that kind of thing. Do you think it will have any particular impact on your neck of the woods?
Andrew Litchfield: I think in the UK we are generally considered to be world leaders in terms of managing risk, managing health and safety risk and risk to the environment, and that's good for business. It makes us more efficient and it's a good thing to be, so I don't think in the short term there will be any change to that at all.
Most of that is the result of the UK legislation which remains in force and remains in place and will continue to do so. It is also the result of the culture that we have built up over the last 50 years as a result of that legislation. In the future I think longer term, there is an opportunity perhaps to make risk management legislation more tailored to the UK economy, it might become perhaps less prescriptive over the longer term and more responsive to what we need in the UK.
Michael: Okay, thank you Andrew. Peter, you have got a specific question up there, which is around whether you should consider using other EU member states for the application of binding corporate rules in relation to data protection. Can you split that up in your general comment on, well, what practical things should you be doing now with data protection?
Peter: Right okay, so perhaps I will focus on the data transfer issue because that's cropped up in a few questions I think.
So, as I said earlier, my best bet is we will end up with some version of the GDPR as part of UK legislation post-BREXIT. If that assumption is correct, then I would hope that the UK will be treated as a whitelisted country under the EU rules, an approved country for data protection purposes, and therefore we would not need additional things in place such as an equivalent to the US privacy shield arrangements that are currently being negotiated.
I would think that's the sensible route for the UK to go down to enable data transfers to continue to the UK post-BREXIT. I think there is a specific question around binding corporate rules, I don't think there is a clear answer to that as to whether or not, if you are currently considering binding corporate rules - in fact, what you should be doing on binding corporate rules is going with the Regulator where your main place of business is anyway, frankly.
So, if you are a UK-headquartered business, I would still go with the ICO as the lead regulator on your binding corporate rules process and I don't see a good reason to change that currently. Obviously, keep that under review over the next year or two in terms of whether we are going have the GDPRs in place at all, because if we don't then binding corporate rules will not be something we will have post-BREXIT but, as I say, if we have some version of GDPR in place anyway, binding corporate rules will probably form part of that and I would like to think that if we are an approved country that we would still be seen for those purposes, at least as a place where you could use our regulator as a lead regulator.
So, in a nutshell, I wouldn't be shifting from the UK currently.
Michael: Okay, so we have a very specific question about European passport rules which obviously allow financial institutions to passport into continental countries from London. Bernardine, I think you might have a view on that?
Bernardine: Yes, basically a European passport as it applies to banks is simply an expression of the fundamental principles of free movement of goods, people and services.
So yes, EEA countries such as Iceland and Norway do benefit from that European passport. So the answer to that will depend upon what trading model we adopt with the EU. So for example if we are to go for a bundle of bilateral agreements such as Switzerland, it would depend upon whether we conclude successfully a bilateral agreement on financial services.
Switzerland doesn't have such an agreement and so for that reason we have a number of Swiss banks who want to operate in the EU and they have located themselves within the EU. At the moment it's in London, so clearly they will have to relocate to benefit from that passport.
So I am afraid the answer will very much depend upon what trading model we have with the EU in the future.
Michael: Question if I may for… actually before that, it is probably worth my commenting on the issue of intellectual property which has come up and obviously intellectual property tends to be quite an international product and we have obviously got a lot of what might be called European co-operation.
The interesting view on that is that there might be one or two very pragmatic issues that might come up for debate around the relationship now between Europe and the UK. At the moment the UK is in line for getting the Life Sciences Court in London and I do slightly worry what the appetite will be amongst other European states for the UK jurisdiction to be the centre for Life Sciences litigation, traditionally a very lucrative part of the business and a very important part of the business.
But good news broadly in relation to intellectual property as a lot of the international element is by reference to international treaty, but not specifically EU international treaty, and the one that is going to be most affected, I think, is the one I might call the trademark framework which is very much based on European legislation and obviously deals with community registrations as well but much of the other stuff, patents, copyrights is broader than that and governed by more internal treaties that are less EU specific.
But actually, in the IP end of things, there are lots of things to get your head around and it is only going to get more complicated for those involved in the international businesses to secure IP protection.
A question for David, if that's alright? My view in relation to BREXIT was that suddenly I start having to worry about tariffs and trade barriers and funny kinds of customs permissions that I didn't have to worry about before, is that going to be the case?
David: Potentially, depending on exactly what deal we do with the EU as Bernardine said, is it going to be a Turkish deal where it is a custom zone which allows preferential tariffs but there are still borders and barriers that you have to go through?
But of course you know, people in the UK and round the world trade happily with each other, you know we do international trade deals with Brazil or India where you have to worry and deal with those issues. It is just to date in the EU we haven't really had to worry too much about that. We know that if we've got a French customer, we can send our stuff to France and it shouldn't be a problem, and the contract will be straightforward.
Now, we will start having to worry about trade barriers in terms of tariffs, but also other barriers, that Customs can establish on borders which may make it more difficult to trade.
So, I think, to date, we have been able to be lazy about trading within the EU. We haven't had to worry about those international trade issues that we have had to worry about in the rest of the world and we will have to up our game if we are doing EU trade. But we do, after all, do that with the rest of the world, so it shouldn't ultimately be the worst thing, subject to what those trade barriers actually set out.
Michael: OK. I've got a question coming in on the community trademark - what will happen to the community trademark?
I'll probably share this issue, if I may, with Bernardine, in a bit, but my view in relation to this of course is that, in relation to existing registrations, it's going to be very difficult - I don't know what the principle is about removing rights that you've already got as a result of leaving the EU. That's going to be a very tricky area.
I would imagine that some way of entitling existing registered community trademarks to survive will be put in place. What could well happen though for the future, unless we do some deal, is that we will no longer be able to benefit from the CTM, the Community Trade Mark, going forward, and we will be facing what used to be the old position of if we wanted a pan-European protection, we'd be filing - and were a UK business with a UK brand - we'd be filing two applications now, not one - one in relation to the UK - who knows, at some future point, even in relation to Scotland, or even Northern Ireland, and then a separate one in relation to the rest of the community…
And actually, whilst it would make sense for the scope of those rights all to be co-terminus and exist together, they will not necessarily do so. You know they may all be some very subtle distinctions between those rights, which the leavers might say, "Well, that's one of the reasons for leaving, because you can have that flexibility to make the UK market potentially more competitive or maybe less competitive".
We are issuing a note by the way on the implications for IP, because they are complex and difficult, and we will also be looking at what's going to happen to the Community Trade Mark, so watch this space on that.
Michael: OK. Kieran, I hope you don't mind me picking on you, but an interesting issue that certainly occurred to me last night is is Northern Ireland - it's almost a sort of melting pot for all the issues that might arise. What do you think?
Kieran: Well, we will see some of the most interesting repercussions on the border between Ireland and Northern Ireland, because, of course, Northern Ireland is the only part of the UK that actually shares, will share a large border with the EU when we do leave.
Now, there has been an awful lot of, well, what one side called scaremongering and what the other side called realism, about whether or not that border would actually harden whenever we leave the EU.
So, traditionally, one can drive from Belfast to Dublin without noticing that you have crossed the border save for a change in road signs and colour of road markings… from miles to kilometres and from white to yellow… but the question is whether, because it will now be a border between the UK and the rest of the EU, that hardens in some ways because of Customs restrictions or because of potential impact on immigration, for example.
Some have said that a route through southern Ireland could be used as a way of immigration coming into the UK if we have started to harden our immigration requirements for people coming in by plane for example.
But one of the other interesting aspects of the Northern Irish dimension in all this is the extent to which EU law has played a part traditionally in the various constitutional settlements that we have seen in Northern Ireland. So, for example under the Belfast Agreement, and through it St Andrew's Agreement, EU law has been very much written into the process.
We have, for example, a north-south ministerial council under the Belfast Agreement, and whenever that is meeting or whenever it is taking a view on issues, it has to actually take into account EU law, so we have to think about whether or not that will go forward.
Michael: Sunil, if I could just take your view on that, again, on a much more international stage, I just wondered whether you've got any views on the impact on Brexit on the UK as a gateway to, you know, what I might call pan-European transactions and the fact it's best to get the work done in the UK and then delivered and, co-ordinated internationally, whether we'll miss out on that from a corporate point of view.
Sunil: I think that there is a risk that we may do so, because the UK's seen very much as a gateway to the EU for international investors. I think part of the challenge lies in how we re-negotiate our arrangements with the EU member states and to what extent we retain all or many of the advantages that we now have by virtue of membership.
I think the next two years in that sense will be quite interesting, because it may well be that it'll still feed the effectiveness of London or the UK as an entry point and make the most of it. I think the more interesting debate will be around what happens after that. It may be through the UK, there are other attractive options to do with trade through Holland or one of the other member states, but I suspect that it will be very high on the agenda of any re-negotiation of the treaties and the arrangement to ensure that the effectiveness advantage remains.
Michael: And how worried are you about the loss of London's influence as a financial centre? I heard the other day that apparently all Euros are cleared in London and the French are making a really strong bid to get that process done in Paris.
Do you see it as a sort of flight-risk of financial services, businesses and expertise drifting towards Europe?
Sunil: I think that in, certainly not in the short term - the longer term threat, or the longer term risk is mainly around the point that was picked up earlier about passporting, and, particularly, passporting for financial institutions into the EU, and I think if those arrangements can be retained then the threat to London as the financial centre for Europe diminishes. It's quite interesting that if we look at what happened to the FTSE this morning, the stocks that have taken all or most of the brunt of the reduction have been financial institutions and particularly banks.
Michael: OK. Bernardine, we have got the issue of state aid. State aid are two words that always go together with European Union. Is there going to be an impact on State Aid?
Bernardine: Not in the short term, but ultimately, what the State Aid rules will do is tend to keep the lid on people competing with each other in terms of the amount of aid they give to their industries, we're with now that club, that safe zone, frankly. So we may well see what sort of trade policy the UK will put in place to stop that sort of behaviour, be it through anti-subsidy rules, anti-dumping rules.
I think the difficulty is this: traditionally, the UK is very open, and it's far less protectionist than the rest of the EU, so, I think the EU will be glad to see the back of the UK because we actually do tend to put the dampeners on trade measures against, for example, China - so we may see them becoming more protectionist.
And the other aspect I see changing as well, we probably as a country get more in State Aid as a result of the EU rules. The EU rules essentially insist often on, say, if funding is coming in from the EU, on matched funding. So we would only get access to that EU funding where the UK matches the funding, so that will wither on the vine.
So we may well see a dislocation or reallocation of resources that otherwise would have gone, for example, to R&D, to joint ventures around the internet of things etc etc. So that whole way R&D receives that capital landscape will shift and change in whether it's going to be the same amount of funding from the UK government as we are currently seeing.
Michael: OK. What I am picking up is that, in the short term, business will all pause for breath and try and work out what's going to happen but obviously, what's coming down the track is a real opportunity if you like to take the best view on what change provides.
A real opportunity to re-negotiate a relationship with either the EU as a collective or indeed, I guess, with individual countries, as we choose to, now we've got that freedom. I just wonder, what the panel think? If I can sort of put it out to any of you to answer really.
The extent to which UK business as a collective ought to be engaged with lobbying and shaping that policy and, to put it in the reverse, the extent to which the phrase coming out at the moment, the "political classes", they seem to have disenfranchised themselves from the electorate. One of the suggestions of the result is the extent to which the political classes will take account of what UK businesses want in shaping the future.
Does any of the panel have any views on the best way in which UK businesses might engage with the process and, perhaps, shape it? David?
David: I mean obviously, there's an opportunity for businesses to identify areas whereby repealing legislation they can cut their costs, and I would have thought any business and every trade association will be reflecting upon the issues Martin's raised about employment rights, or do we really need the commercial agency regulations, what can we do about product safety regulation, so there is opportunity to drive down costs.
And of course, if we are changing our relationship with the world and our trade relationship with the world, that will also throw up huge international opportunities. So I don't think that business should necessarily be too down in the mouth today, because there will be opportunities as much as there are threats to the diversity.
The weakness of the pound this morning shows the instability and the volatility of the market, but for any exporter, who is largely sourcing their materials in the UK, it's great news and propels them onto the world stage that they have not been able to access.
So they would be the opportunities, but I am not going to take your invitation to comment on the bigger socio-economic issues Michael, but if one of the other panel members wants to take that on, I will be happy!
Kieran: Well I wasn't going to talk about the broader socio-economic issues, but I was going to mention part of the consultation point actually.
As well as sort of standard lobbying mechanisms, one of the interesting dynamics that we are going to see unfold over the next couple of months is the extent to which government lets anyone else into these negotiations. I think they are going to have to take the will of parliament to some degree and that is probably best done through input from the relevant select committees, so the Foreign Affairs Committee, the European Union Committee and those committees will I think be turning to business and will be taking evidence and putting out reports based on what business is telling them, so I can see a situation in which very select committees request associations and business to come before them to give their views of the negotiations and how they are shaping up and for that then to be fed via select committee into the government negotiating position.
Michael: Ok another question if I may to the whole panel. In this room we have various people focussed on some of the various sector groups that we specialise in, is anyone picking up any particular concerns around particular sectors that are going to be affected by Brexit?
There was some comment this morning again in relation to automotive and the impact of car imports and exports ability to set up factories which is quite interesting. I just wondered, we have got representatives here who are active in technology, who are active in energy, who are active in automotive food and drink, real estate Richard, does anyone think any particular sector is particularly exposed to what's gone on?
Bernardine: I think possibly in the long term where you've had the benefit of the EU, you can see the patent convention, European Patent Convention. That will be problematic.
Sunil: Yes, ok. I think Michael there's a question coming about the possibility of some sort of tiered freedom of movement regime as between wealthier western European and relatively poorer eastern European countries. I think a sector that might be affected would be the hospitality, hotels, catering sector, which is reliant to some degree on a significant amount of eastern European labour coming in.
It seems likely over time if freedom of movement is not available in most parts of Europe that it will push up the wage costs of those sectors. Certainly in part of the campaign were some videos put out about, if you go out to buy lunch in Central London or go into a sandwich shop, is there going to be anybody serving behind the counter, or are you going to find that it is going to be staffed by English people?
Given the importance of immigration, migration and freedom of movement in the whole political debate about this, that's going to be pretty vexed and important going forward. Whether we will end up with a tiered approach, I honestly, I have no idea how that might pan out. I can see that there will be a need for it to be retained to some degree, but how does that manage to balance itself with the perception of the majority voters who favour limiting free movement of labour?
Michael: Ok, there's a very technical question coming in here, Sunil. I don't know whether Sunil is smiling or laughing because it is such an easy one to answer or one where his stomach sunk to his boots, but we have got a particular question, which is probably our last question at the moment if that's ok.
We have obviously European companies within the Ciete European which, requires two constituent parties and the technical question is whether the UK company will still be able to constitute one of those parties?
Sunil: Because it is a very technical question, I don't think I have the definitive answer. I wouldn't be surprised if there weren't some kind of grandfathering arrangement, so that existing European companies can continue to operate with the constituent members even though one of them has - it could be the UK member - has subsequently left the EU, as I think it could be too much of a disruption otherwise.
Michael: Yes, ok. So probably as a final question and I'm conscious I've just said final questions twice, but the last one to come in is particularly interesting which is, if we have been hobbled by EU rules and negotiating trade deals outside the EU, how are we going to be able to make deals with members within the EU now we are out and vice versa? How will they make deals with us? Bernardine, I'll probably give you the last words if that's ok?
Bernardine: In short you can't because the external trade policy falls within the exclusive purview of European community. This is one of these areas where we have pulled sovereignty, so there isn't a possibility for separate trade deals within individual member states. You have to negotiate with the EU as a whole.
Michael: Ok, well that's the "what is going to happen now we leave Brexit" webinar from Gowling WLG, it just remains for me to thank the panel for their time and also to thank the audience for listening in, whether you've asked questions or not.
We really appreciate the fact that you've spent time with us, so I hope you enjoy the rest of what's obviously going to be a very interesting day. Thank you very much.