Trade & Investment (post Brexit) update: Entente cordiale & international data transfers

The ‘Entente Cordiale’

Brexit has definitely put the relationship between the UK and France under some strain, resulting in The Times publishing a second leader editorial on 4th August 2021 under the headline “Crossing the Channel”. (If and when The Times was to publish such an article as its first leader editorial, one would know that the situation was really quite serious but a second leader editorial is serious enough!)

In a separate article in The Times on the same day, under the heading “Macron accused of stonewalling plans for Anglo-French summit”, The Times reported that President Macron of France appeared to be stalling on the convening of the usual bi-annual summit between France the UK (last held in 2018 but deferred to 2021 because of  Covid-19). According to The Times article, this indicates a level of mistrust between the two countries and  The Times article comments: “Figures on both sides of the Channel point to bad blood and recriminations across a range of policy areas, including Brexit fishing rights, migration, the supply and safety of the Astra-Zeneca vaccine and Covid quarantine.”

In its second leader editorial, The Times encourages the UK Prime Minister and the French President to proceed with the UK- France summit with a view to resolving “recent spats”, which today dominate their relations. “Brexit”, according to The Times, seems to be at the heart of the two politicians’ disdain for each other but the trouble is that it is often the ordinary folk who pay the price.

The Times acknowledges, in its second leader editorial, that at the level of military co-operation, the relationship between the UK and France remains very good but this only re-emphasises the need to fix their problems over Brexit.

The theme of Anglo-French discord resulting from Brexit is examined further in an article for The Sunday Times on 8th August 2021 by Professor Vernon Bogdanor of King’s College, London. Professor Bogdanor argues that it is in the interests of both the UK and France that they work together, particularly in defence matters but also more generally, and concludes that “the needs of European defence, together with the overriding need to preserve a liberal order in France and in Europe, make it imperative that the current “mesentente” be replaced with a new entente cordiale”.

Professor Bogdanor appears to criticise President Macron for continuing “the [French] Fifth Republic tradition of marginalising Britain in Europe” but, of course, it was the UK that elected to leave the EU and not the other way around.

The full impact of Anglo-French political discord upon trade and investment between the UK and France (and more widely between the UK and the EU as a whole) remains to be seen but it may be important that the business communities in both countries, as well as the free press in each country, call the politicians to account in that regard so that the traditional “entente cordiale” between the UK and France does not go pear-shaped.

Brexit and the “Territorial Imperative”

In 1966, the American writer and anthropologist, Robert Ardrey, had a book published, entitled “The Territorial Imperative: A Personal Inquiry into the Animal Origins of Property and Nations”. According to Wikipedia, the book “describes the evolutionarily determined instinct among humans toward territoriality in human meta-phenomena such as property ownership and nation building”.

How does this relate to Brexit?

Well, for some Brexit–supporters in the UK, it seemed that “Brexit” was all about “taking back control”  – which must have included the UK taking back control over its own borders and therefore, from the perception of the Brexiteers, taking back control over the UK’s territory. Hence, the relevance of Robert Ardrey’s book title.

It may be, therefore, that the relationship between the UK and the EU –  as indeed that between certain other member states of the EU and the EU itself –  was always going to be inherently unstable, with citizens of individual member states wanting to assert territorial control over their countries to the detriment of the EU ideal.

Thought for the day!

Brexit and EU Standard Contractual Clauses

On 11th August 2021, the UK Information Commissioner’s Office (ICO) launched a consultation on international data transfers and published a draft “International Data Transfer Agreement” (“IDTA”) and a draft “International Transfer Risk Assessment and Tool”. It is intended that the IDTA would replace the existing UK Standard Contractual Clauses for transfers of personal data from the UK.

In the context of post-Brexit co-operation, it is worth bearing in mind that the ICO has proposed that the new EU Standard Contractual Clauses, published by the European Commission in June 2021, could be used as an alternative to the new IDTA for transfers of personal data from the UK, subject to the use of a “UK addendum”. The UK addendum reportedly substitutes references to the EU data protection regime with UK legislation and addresses issues such as governing law and choice of forum and jurisdiction for disputes.

From a legal perspective, it does seem to make sense that, with such an internationally mobile commodity as personal data transfer, the UK and the EU standard Contractual Clauses regulatory regimes remain aligned as far as possible.

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Disclaimer: Nothing in the Legal Insights section and this blog is intended to provide legal or other professional advice and, if readers are interested, they should consider taking separate legal or other professional advice accordingly.

David Glass

Specialist in Business & Corporate, Commercial Contracts
& Insolvency & Corporate Recovery

E: [email protected]
T: +44 (0)845 257 9449