To much fanfare, but a dearth of detail, Theresa May
announced on 2 October that the Government will introduce a
'Great Repeal Bill' in the next Queen's Speech.
The Bill is intended to remove the European Communities Act
(ECA) 1972 from the statute book following completion of the Brexit
negotiations. Once enacted, the intention is that the Bill
will simply incorporate all current applicable EU law into domestic
UK legislation, which can then be retained, amended or repealed as
appropriate at the Government's leisure. In one
fell swoop, on the UK's exist from the EU (
Brexit A Bluffer's Guide to Brexit Models), the UK will
remove the primacy of EU law and the jurisdiction of the Court of
Justice of the European Union over UK national laws
Whilst plainly preferable to the legal void that would ensue if
the ECA were simply repealed and EU Regulations ceased to apply
with no transitional arrangements, there a number of issues will
need to be addressed. For example, many EU laws make
references to EU agencies and institutions setting standards or
performing functions in relation to EU law in a way that is plainly
inconsistent with the stated desire to remove the primacy of EU
One such example is the EU Merger Regulation (EUMR) which
provides that transactions meeting the relevant jurisdictional
threshold are subject to mandatory prior notification to the
European Commission. As a Regulation, the EUMR has direct
effect in the UK with no requirement for implementing UK
legislation. Simply incorporating the EUMR into UK domestic
legislation as appears to be the intention of the Great Repeal Bill
gives rise to a whole host of inconsistencies and
difficulties. Whatever the UK legislation might say, the UK
will simply no longer be a Member State and as a result UK turnover
will not, as a matter of EU law, count towards the relevant EU
First, it seems difficult to believe that having removed itself
from the primacy of EU law and its institutions, the UK would
voluntarily submit to the authority of the European
Commission. Second, and perhaps most importantly, absent
transitional arrangements, there is no basis for the European
Commission to consider the effects on third countries outside the
EEA. Finally, transactions which currently meet the EUMR
thresholds by virtue of UK turnover, may no longer qualify for
review in Brussels, meaning that the European Commission will not
have jurisdiction under its own rules, whatever the effect of the
Great Repeal Bill.
Another example is the EU General Data Protection Regulation
(GDPR) which comes into force in 2018. Assuming the UK is
still a member of the EU at the date this comes into force (which
now seems likely), this Regulation will have direct effect with no
need for implementing UK legislation. It will also fall under
the corpus of existing EU law that we understand the Great Repeal
Bill is designed to incorporate into UK domestic legislation.
Failure to implement the GDPR would result in a significant gap in
data privacy law, as the UK's current Data Protection Act will
itself have been superseded by the GDPR by the time of Brexit.
However, in common with EUMR, at the core of the GDPR is a
European institution, in this case the creation of the European
Data Protection Board (EDPB) which is responsible for consistent
application of the GDPR across the EU. Again, it would seem
odd for the UK to submit its data protection regime to oversight of
an EU body, whilst there can be no certainty that the EDPB would
continue to have jurisdiction over the UK post-Brexit, absent
specific transitional arrangements, whatever the general principle
of the Great Repeal Bill.
As can be seen from the above two isolated examples, the Great
Repeal Bill will not be a panacea to solve all the legal issues of
Brexit absent additional and specific transitional
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The government has been working to incorporate the changes required as a result of the OECD's work on BEPS Action 5: Harmful Tax Practices, which requires implementation of a Nexus approach to the Patent Box regime.
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