Friday, October 14, 2016

United Kingdom – The Great Repeal Bill – implications for telecommunications #Brexit


The Rt Hon Theresa May MP, Prime Minister, has announced that shortly after the invocation of Article 50 TEU in the first quarter of 2017, a Great Repeal Bill will be presented to Parliament. However, when it becomes the Great Repeal Act (GRA), perhaps with some more prosaic name, it would not have immediate effect, but would be triggered on the great day of Brexit, presumably a public holiday with street parties and fireworks, in the first quarter of 2019.

While negotiations might be extended beyond the two year period, this seems increasingly unlikely, since it requires unanimity amongst the member states. Separately, there will be a trade agreement between the EU and the United Kingdom.

Despite its name, the GRA will repeal very little, but instead turn great swathes of the EU acquis into British law. However, the full scope of this is unclear, whether it encompasses all treaties, regulations, recommendations, decisions and standards, or will specify only some of these.

The Secretary of State for Exiting the EU has made clear that the GRA will end the primacy of the EU acquis and of the Court of Justice of the European Union (CJEU), with legal cases ending in the Supreme Court of the United Kingdom. However, it is likely that in matters of the interpretation of laws derived from the EU acquis, British courts would consider CJEU rulings to be persuasive.

European Communities Act 1972

The venerable European Communities Act (ECA) would be repealed, with the legal basis of all the related statutory instruments (SIs) being transferred to the GRA.

Statutory instruments

The requirement for the revision and repeal of elements of the EU acquis accumulated over four decades is enormous. The intention of HMG appears to be to make these changes primarily by means of statutory instruments.

This has already caused some upset. It has been argued that Brexit was supposed to restore the supremacy of parliament, not for the bulk of the legal changes to be made with minimal parliamentary scrutiny, not even by the EU committees of the two houses of parliament.

Some of the changes are expected to be by Henry VIII clauses, in which statutory instruments amend acts of parliament. There is an obscure irony here, since the historical parallel has been drawn between leaving the EU and the decision of HM King Henry VIII to leave the Roman Catholic Church.

In telecommunications, changes to the Communications Act 2003 can readily be foreseen, which would be likely to be amended by “Henry VIII clauses”. For example, it would be necessary to remove references to the European Commission and completion of the single market (see Table 1).

Table 1               Reference to the European Union in the Communications Act 2003

Duties for the purpose of fulfilling Community obligations:
e.g. “a requirement to secure that OFCOM’s activities contribute to the development of the European internal market” and “to promote the interests of all persons who are citizens of the European Union”
Community requirement to provide information:
“It shall be the duty of OFCOM to comply with the requirement”
Delivery of copies of notifications etc:
“The relevant person must send to the European Commission” copies of various notices, with copies of some to “regulatory authorities of the other member States”
Designation of universal service providers:
“they must give a notification of that designation, or of that fact, to the European Commission”
Imposition of privileged supplier conditions:
“special or exclusive rights” has the same meaning as in Art. 86 TEU (now Art. 106 TFEU)
Market power determinations:
(2) In identifying or analysing any services market for the purposes of this Chapter, OFCOM must take due account of all applicable guidelines and recommendations which—
(a) have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and
(b) relate to market identification and analysis.
(3) In considering whether to make or revise a market power determination in relation to a services market, OFCOM must take due account of all applicable guidelines and recommendations which—
(a) have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and
(b) relate to market analysis or the determination of what constitutes significant market power.
(7) References in this section to guidelines and recommendations issued by the European Commission and to a Community instrument include references, respectively, to guidelines and recommendations issued after the commencement of this section and to a Community instrument made after the commencement of this section.
Delivery of copies of notifications under ss. 79 and 80:
OFCOM must send copies to the European Commission
European Commission’s powers in respect of proposals:
Obligation to comply with decisions of the EC in respect of the procedure Art. 7(4) of Directive 2002/21/EC.
Special rules for transnational markets:
Obligation to comply with the procedure in Art. 15(4) of Directive 2002/21/EC
Review of services market identifications and determinations:
“the duty of OFCOM to carry out such a further analysis of a services market as soon as reasonably practicable after recommendations are made by the European Commission”
Conditions about network access in exceptional cases:
OFCOM may set the additional SMP conditions if it has informed the EC and it has approved.
Conditions about regulation of services etc. for end-users:
Obligation to inform the EC
Conditions about leased lines:
To use a list of standards published by the EC.

The current legislative proposals of the EC create trickier judgements as to what needs to be rolled over in British law:
  • ·         Proposal for a European Electronic Communications Code - COM(2016) 590;
  • ·         Proposal for a Regulation as regards the promotion of Internet connectivity in local communities - COM(2016) 589; and
  • ·         5G for Europe: an action plan - COM(2016) 588

Roaming regulations

Controls over retail and wholesale prices for roaming within the EU and EEA have been implemented by a series of regulations: (EC) No 717/2007, (EC) No 544/2009, (EU) No 531/2012, and (EU) 2015/2120. These apply to operators in the EU and the EEA, requiring them to conform to ever lower price caps, intended to eliminate roaming charges by mid-2017.

Additionally, there are draft guidelines published by the EC. The first draft was withdrawn by President Juncker and Prof Dr Selmayr, to be rewritten in a more political form, that is harsher to the operators.

There is little purpose in transposing the roaming regulations into United Kingdom law, since the mobile operators would cease to have access to the regulated wholesale prices in the remaining EU-27 member states. Thus the effect of transposition would be to require operators based in the United Kingdom to offer very low roaming prices to customers roaming into the EU-27, without the necessary wholesale rates being available from their continental counterparts. The transposition would also require them to offer operators from the EU-27 very low wholesale rates, that those operators would have ceased, as a result of Brexit, to be required to pass on to their customers.

Regulation (EU) 2015/2120

The EU Regulation 2015/2120 contains amendments to directives that have been transposed into United Kingdom law, primarily the Communications Act 2003 and Open Internet Access (EU Regulation) Regulations 2016 (SI 2016 No. 607).

Logically, it should be transposed by the GRA. However, this creates yet more links into EU acquis (see Table 2), that would have to be removed.

Table 2               Provisions in Regulation (EU) 2015/2120

Art. 3(4)
Any traffic management measure may entail processing of personal data only if such processing is necessary and proportionate to achieve the objectives set out in paragraph 3. Such processing shall be carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council. Traffic management measures shall also comply with Directive 2002/58/EC of the European Parliament and of the Council.
Art. 8
3. National measures regarding end-users’ access to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy and due process, as defined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental

Governance networks

With Brexit, the United Kingdom leaves the various European Regulatory Networks (ERNs). Consequently, there would be no purpose in bringing into British law the decisions and regulations that created the regulatory bodies, namely:

The United Kingdom would no longer be eligible to be a member of these bodies.

In theory it might negotiate continued membership or observer status, but since these bodies are intended to influence the policies of members and observers, this would seem inappropriate.

State Aid

The state aid rules exist only in Article 107(1) TFEU and in EU general measures and the specific guidelines for broadband. Consequently, if these are not transposed by the GRA they would disappear, which could have adverse effects on competition in markets and could run the risk of anti-dumping complaints.

HMG has had problems in applications of the state aid rules to telecommunications in Atlas, in delays to the BDUK rural broadband scheme, and in the loss of super-connected cities scheme. Hence, it seems likely it would wish to devise different and simpler rules.

Any new rules could be adjudicated by HM Treasury or by the relevant ministry (e.g., DCMS for broadband). A crucial question would be the nature of any appeals, whether on something like the present criteria (i.e., effects on competition) or judicial review. The former would be preferable and could be heard by the Competition Appeal Tribunal (CAT).

A green paper

Rather than randomly produce SIs from the depths of Whitehall, the result of obscure lobbying, it would be preferable for Department for Culture, Media and Sport (DCMS) to publish a Green Paper, together with impact assessments, perhaps in late 2017, with all the proposed changes. This would allow HMG to consult widely and publically, for it to be considered by the CMS Committee, in order to ensure that the changes eventually made were the best possible.

While a separate agreement on telecommunications with the EU could be envisaged, it seems unlikely to be necessary.

Appeals and reviews

Given that HMG was yesterday in the High Court defending the decision to use the Royal Prerogative to invoke Art. 50 TEU, it has to be assumed that any or all of the above is likely to be challenged in court. Judicial review of almost any action would be possible, potentially aggravated by a failure to consult on the various options or to provide an impact assessment.

As at least one DCMS Secretary of State has complained, the operators are very litigious. They are liable to take action against the government to delay or block any or all of the measures if they would be disadvantaged.


Given that “Brexit means Brexit” and the decision, apparently, cannot be reversed, the best has to be made of the legal complexities. It is important that the changes are as transparent as possible and that there are public consultations before anything irrevocable is done.

It should be possible for HMG to produce a green paper with possible changes in order to consult on the proposed measures. It could outline alternatives and provide impact assessments to assist parliament, industry and consumers. It would also allow overarching design for the new system to be set out.


The Queen on application of Dos Santos & others v. Secretary of State for Exiting the European Union, CO/3281/2016, High Court of Justice, Queen’s Bench Division, Administrative Court.

Raymond McCord Judicial Review, High Court of Northern Ireland, Queen’s Bench Division (28th September 2016).

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