UK: Great Repeal Bill – Don't Know What I Want, But I Know How To Get It

Last Updated: 4 September 2017
Article by Aaron Nelson and David Mundy

Events this week have raised again the question of what sort of Brexit the Government is seeking.

We discussed in the last post that Chancellor Philip Hammond and SSExEU David Davis seem to be at odds, with the Chancellor increasingly pushing the economic argument for a 'softer' Brexit (even if that diminishes 'sovereignty'), while the SSExEU insists that (as set out in the White Paper) the UK will definitely be leaving both the single market and the customs union by March 2019.

This week has brought reports that DExEU is increasingly accepting that there will need to be trade-offs between market access and political control when the UK leaves the EU (ie the UK cannot 'have its cake and eat it').

Of course, Labour's position is little clearer, with Corbyn sacking three shadow ministers on Thursday for supporting a backbench Queen's Speech amendment which backed staying the Single Market.

In that context, let's have a look at the UK's options.

Staying in the single market

The single market is perhaps the most ambitious type of trade co-operation. That's because as well as eliminating tariffs, quotas or taxes on trade, it also includes the free movement of goods, services, capital and people. For goods, the single market strives to remove tariffs and also so-called 'non-tariff barriers' like different rules on packaging, safety and standards (hence all those EU regulations). A single market for services is more difficult, because the 'non-tariff barriers' are things like necessary qualifications and applicable regulations. It remains a work in progress.

In order to stay in the single market, the UK would have to allow the free movement of goods, services, capital and people, which means immigration is difficult (if not impossible) to control. Membership of the single market also normally involves making annual payments towards the EU's budget and accepting the jurisdiction of the European Court of Justice.

In the current political climate, we can probably rule this option out.

EU customs union

The UK could aim for a relationship like Turkey has, which is part of the EU customs union, but is not in the single market (which means it is not obliged to follow EU single market rules on allowing freedom of movement, and so has 'control of immigration').

In a customs union, the countries agree to apply the same tariffs to goods from outside the union. Once goods have cleared customs in one country, they can be shipped to others within the customs union without further tariffs being imposed. Going for this option would solve the Irish border question – it would remain relatively open and easy for goods to cross.

Charles Grant, director of the Centre for European Reform said this week:

'Though retaining a customs union with the EU would madden the Tory right, there is a strong macro-economic case for doing so. According to the Treasury's unpublished analysis, the economic benefits of future [free trade agreements] would be significantly less than the economic cost of leaving the customs union.'

On the other hand, some argue that staying in the EU customs union would be of little benefit to the UK.

  • First, because services are a huge part of the British economy (about 78%) and are not generally covered by the EU customs union (nor would agriculture or fishing, since the UK would not be in the CAP or CFP).
  • Second, the UK would have to comply with 'rules of origin' (ie demonstrate that UK goods originated in this country and were not just imported from, e.g. China or India, and then exported tariff-free into the EU). That could complicate the UK's trade with those companies (particularly in the motor industry) that import components from around the world to put into finished products made in the UK.
  • Third, the UK couldn't negotiate free trade deals with other countries, as the EU would do that (as it does now).
  • Fourth, it would probably mean paying money to the EU and accepting ECJ judgements when they relate to trade.

A new customs union?

Given these disadvantages, one idea being floated is that the UK would leave the EU customs union, but create a new customs union with the EU customs union in respect of goods.

This would allow physical products to trade freely across borders without export duties or delay so long as the EU27 and UK shared a common external tariff (or perhaps more accurately, so long as the UK continued to mirror the EU's external tariff). Crucially, however, that deal would not apply to services, and so would not prevent the UK seeking deals with countries outside the EU in the services sector.

Any such deal would have a number of hurdles to overcome: the EU27 may consider it 'cherry picking' and may also require the UK to 'mirror' EU regulations on product standards and to remain subject to the jurisdiction of the ECJ (which hard Brexiteers would resist). The EU27 have also stated that, in principle, the UK cannot have a better deal outside single market than within it.

Free trade area

The White Paper position is to leave both the single market and the EU customs union, and to seek to negotiate a free trade deal with the EU, ie a deal under which there are no tariffs or taxes or quotas on (particular) goods and/or services from one country entering another. In the services sector (e.g. banking and education), the free trade deal would involve mutual recognition of different rules, standards and qualifications.

The UK could join EFTA, the European Free Trade Association, which currently has Norway, Iceland, Switzerland and Liechtenstein as members (but note that all but Switzerland are also part of the single market). Switzerland has had to negotiate individual deals with the EU covering particular sectors – this has been a long and arduous process.

The EU also has free trade arrangements with many other countries around the world; so it is not against negotiating one with the UK in principle, but compared with staying in the single market or the customs union, or even a new customs union, this would be the 'hardest' form of Brexit. It would also almost certainly mean border controls (including between Ireland and Northern Ireland).

No more fudge

What the Government cannot do is continue to obfuscate the choices to be made with meaningless phrases like 'Brexit means Brexit'. It needs to agree in its own ranks what option to take, in order that real progress can be made in the EU negotiations over the summer. Sustaining the fudge is walking into the negotiations without knowing what it wants.

'Don't know what I want, but I know how to get it' (The Sex Pistols, Anarchy in the UK)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.