Introduction
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Communities Act (ECA) would be repealed, with the legal basis of all the related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
s.4
|
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”
|
s.25
|
Community requirement to provide information:
“It shall be the duty of OFCOM to comply with the requirement”
|
s.50
|
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”
|
s.66
|
Designation of universal service providers:
“they must give a notification of that designation, or of that fact,
to the European Commission”
|
s.77
|
Imposition of privileged supplier conditions:
“special or exclusive rights” has the same meaning as in Art. 86 TEU
(now Art. 106 TFEU)
|
s.79
|
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.
And
(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.
|
s.81
|
Delivery of copies of notifications under ss. 79 and 80:
OFCOM must send copies to the European Commission
|
s.82
|
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.
|
s.83
|
Special rules for transnational markets:
Obligation to comply with the procedure in Art. 15(4) of Directive
2002/21/EC
|
s.84
|
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”
|
s.89
|
Conditions about network access in exceptional cases:
OFCOM may set the additional SMP conditions if it has informed the EC
and it has approved.
|
s.91
|
Conditions about regulation of services etc. for end-users:
Obligation to inform the EC
|
s.92
|
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
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
Freedoms.
|
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.
Conclusion
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.
References
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).
