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Brexit and UK legislation – public procurement and e-commerce

Itohan Odekunle highlights the impact Brexit is having on the UK statute book with a particular focus on public procurement and e-commerce.

One inevitable consequence of Brexit (whatever form it takes) is the sheer volume of legislative amendment which it will invariably trigger. For over 50 years, UK law has been largely shaped by European Union (EU) legislation and decisions, all of which will need to be unravelled. As the formal date of the UK’s withdrawal from the EU draws nearer, i.e. 11pm on 29 March 2019 – unless it is extended (Exit Day), the Government is working to churn out amendments to existing legislation that will enable us to have a cohesive body of laws on Exit Day.

On 26 July 2018 the European Union (Withdrawal) Act 2018 (EUWA) received royal assent. EUWA is the key legislation enacted by the Government to avert the legislative quagmire that would otherwise have been caused by Brexit. It gives UK Ministers powers to create Statutory Instruments (SIs) to help with a range of legal issues caused by Brexit. In particular it enables parliament to address deficiencies in retained EU influenced laws that may occur following Exit Day, and to ensure that the UK’s statute book contains legislation that is operable.

In the last few months we have seen a steady stream of SIs covering sectors such as agriculture, climate control, data protection, and public procurement. The majority of these will not come into effect until Exit Day. The bulk of the amendments introduced by the SIs are simply to enable existing legislation to continue to be coherent following Exit Day and address references to EU institutions and legislation. However, the impact of these SIs should not be underestimated as they invariably bring change and new processes which cannot be ignored by industry and practitioners in the relevant sectors. Two examples within the commercial sector are set out below:

Public Procurement

The Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (the Procurement Regs) amend existing public procurement legislation. The main changes brought by the Procurement Regs are:

  • To replace the requirement to send notices for publication in OJEU with the requirement to submit notices to a new UK e-notification service. This means that following Exit Day, new procurement opportunities in the UK will no longer need to be advertised via an OJEU notice. Contracting authorities will need to get to grips with a new form and a new system of publishing notices (subject of course to any transition arrangements agreed with the EU post Exit Day).
  •  To revoke various EU Regulations and Decisions e.g. the regulations governing the Common Procurement Vocabulary codes. The Minster for the Cabinet Office will be responsible for variations to the CPV codes going forward.
  •  To remove the specific right for contracting authorities to reject an abnormally low tender on the basis that the tenderer has obtained State Aid and is unable to prove that the aid in question was compatible with the internal market, i.e. an accepted practice within the EU. A new UK State Aid regime will be implemented following Exit Day and as it would be inappropriate for economic operators established in the UK to be required to demonstrate that aid provided by the UK Government was compatible with operators situated elsewhere in the EU… READ MORE