Can "hard" and "soft" Brexit co-exist?

Rowan Freeland considers the potential impact of Brexit on the UPC - can the UK still play a role?

Much of the debate over Brexit in recent weeks has focused on the problem that we will get the same “Brexit” across the board - if we have a “hard” Brexit on our right to control immigration, there must also be a “hard” Brexit in which the City and UK Industry generally has restricted access to the single market; while the price for freer access to single market is free movement of people.

A possible solution to this problem has emerged from the unlikely world of patents. At the time of the referendum, the UK was preparing to ratify the Agreement for a Unified Patent Court (UPC), an international court for deciding patent disputes. The Agreement includes only EU member states, so the question arose whether the UK could continue to be a member after Brexit. I coordinated the IP Federation (an industry association), the Chartered Institute of Patent Attorneys and a consortium of interested law firms to seek an Opinion from specialist EU/constitutional Counsel, Richard Gordon QC and Tom Pascoe, on whether continued participation of a non-EU member State was legally possible.

The Opinion says that the UK can continue to participate so long as it signs up to the full application of EU law (including references to the CJEU), but only within the areas covered by the jurisdiction of the UPC. Of course, we should not underestimate the political difficulties of having an area of UK sovereignty, even if tightly circumscribed, subject to EU law and the rulings of the CJEU.

Nevertheless, this does provide a model whereby one area of national life which would benefit from continued participation in the EU can do so without bringing the full ramifications of EU membership across the board. To me as a life sciences IP lawyer, the obvious other areas where such “islands” of EU engagement could be beneficial are the pharmaceutical regulation system and the European trade mark and design system. Other readers with interests in other areas will no doubt identify other areas of the worlds of finance and business where continued close engagement with the EU would be desirable if it could similarly be limited. Could islands of “Soft Brexit” in a sea of “hard Brexit” be the way forward?

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