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Brexit update: how will withdrawal affect research funding, citizens’ rights and data regulation?

The first in a series of articles anticipating the impact of Brexit on research in the run-up to the UK’s departure from the European Union

©istock.com/CharlieAJA
©istock.com/CharlieAJA

Following the Brexit referendum in June 2016, the immediate priority for Elsevier and the whole of the research community was to gauge the likely consequences, impacts and opportunities on our world. There are are three major areas to consider:

  • Access to research funding
  • The rights of UK and EU citizens
  • The regulatory framework around data

Although the Brexit negotiation process is still continuing ahead of the departure date of 29 March 2019 – and a likely further end of transition date of 31 December 2020 – we are starting to see some signs of clarity in these areas. That said, much of the foregoing will depend on the withdrawal agreement between the UK and the EU 27, the conclusion of which is required by autumn. Although this is likely, it is not certain, and in the event of failure, it would require a lot of creativity, good will and flexibility to put arrangements in place.

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Research funding

When the UK leaves the EU, it will no longer automatically be a participant in the research funding frameworks, either the current Horizon 2020 or its successor programme FP9 – now being dubbed “Horizon Europe.” However, there are currently many non-EU nations that do participate in these programmes, and the British government has indicated that it would wish to remain involved. The draft regulation on Horizon Europe states that the programme will be open to “third countries” provided they have a “good capacity” for science and innovation; a “commitment to … an open market economy” and actively promote “economic and social well-being of citizens.” On those criteria, the UK is a walk-in so long as they also make a financial contribution.

On the face of it, at this stage, the UK will be able to participate in Horizon Europe. Whether it does will be a decision for the British government, but it’s hard to envisage it would not do so, and ministers are saying that they are keen to “continue to collaborate” in this area.

Citizens’ rights

The ability of people to live, work and travel freely between the EU and UK will have a direct bearing on researcher mobility, scientific collaboration and – by extension – research performance. The draft Withdrawal Treaty, as jointly published by the Commission and the UK in March 2018, sets out the agreed position of EU nationals living in the UK at the end of transition, and that of UK citizens in the EU. It provides that from the end of the transition period they – and their family members - shall “retain their right of residence in the host State, provided they continue to reside there”. Those who have been in the host country for five years prior to transition date will get the right to permanent residency.

In general the Treaty will create a “business as usual” condition for those people who are already living in working in a country other than own. One important limitation as far as UK nationals are concerned is that they cannot move to a different member State within the Union.

However, the bigger question as to what happens to UK immigration laws – and in particular the freedom of movement for researchers and professionals - is unclear. Naturally this is not part of the withdrawal negotiations as it is fundamentally a question for the UK to decide for itself. The detail of the direction of travel will be seen from the Government’s Migration Advisory Committee, which is due to report in September on its assessment of the impact of Brexit and considerations for the future system. To a large extent policy decisions will be determined by domestic political considerations and the appetite and capacity of the government of the day to take lesser or greater control over the borders. As a clear example of the highly politicised nature of this issue, a debate is already brewing as to whether students should be included in the migration figures – a factor which may have a direct bearing on the attractiveness of the UK’s higher education sector. This and other contentious political factors means it remains very difficult to predict the impact of Brexit on the movement of people.

Regulatory frameworks

Of all the myriad complexities surrounding the transition of EU to UK law, and the ongoing ability of the UK to engage with the EU, the areas of data transfer and copyright are most germane for the research community.

The ability to collect, transfer and store data across the EU-UK border has been the subject of a great deal of debate. The coming into force of the General Data Protection Regulation (GDPR) in May provides a strong backdrop of recent alignment against which developments in EU and UK jurisdictions can be judged.

The British Parliament and government have been equally adamant that the “frictionless flow of data” should continue after Brexit. The EU, with a different emphasis, has said that although the UK will be a formal “third party,” at the end of the transition period, it may be able to maintain its data relationship with the EU either through a still to be specified agreement and being nominated as having “adequate” arrangements, or through deploying so-called “alternative measures,” many of which are already established practice. Whilst it is too early to say which of these outcomes will occur, it at least seems highly probable that one way or another there will be no hampering of data flows post-Brexit.

The picture is less clear-cut around copyright. The current Information Society Directive, which governs most major aspects of copyright, will be subsumed fully into UK law, and to that extent the path following Brexit may be seamless. However, an ongoing review and forthcoming introduction of a new copyright directive will be in place come March 2019, and the UK government will be at liberty to reject certain aspects of it. This could conceivably lead to different arrangements in areas such as text and data mining (where the UK already has a copyright exception which is at slight variance with the one proposed), reproduction of works for education purposes, and the responsibility of online content sharing service providers. Again, much will depend on the political appetites of the government and whether the legal ability to take a different path will be a more attractive route than the perceived economic benefits of doing so.

The caveat

All discussions on the likely outcome of Brexit have to come with a health warning. This is not a process which anyone has seen before, the moving parts are many and various, and on many issues, the political and economic pressures point towards different directions. The most probable outcome appears to be a scenario of minimum disruption, but in this almost chaotic environment, even the smallest political changes can have a large impact on the final scenario.

Sources

For key sources used throughout article – and additional information and access to published texts from the European Commission and British government – see the European Commission’s Taskforce on Article 50 negotiations and the Department for Exiting the European Union.

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