Robert Breedon
Partner
Article
Following the UK's vote to leave the European Union (EU) in June, there is much debate on whether the Government will pursue a 'soft' or 'hard' Brexit. The approach adopted will, of course, be politically driven but the chosen route will impact on a number of areas currently subject to EU-based legislation including the UK's current public procurement laws. It is now very well documented that the process surrounding the UK's exit from the EU is likely to take up to two years from the triggering of Article 50. For the short term therefore, we are unlikely to see any significant change in our public procurement laws: the current suite of Regulations comprising the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016 and the Concessions Contracts Regulations 2016 will continue to regulate UK public purchasing for some time.
Indeed, any medium term changes to domestic legislation will need a positive decision by Parliament: UK law derived from EU legislation will not be repealed simply by virtue of the UK leaving the EU (such laws will continue in force by virtue of The Great Repeal Bill).
But what about the post-Brexit position?
The options available to the UK upon leaving the EU include the following:
These first two options are typically referred to as 'soft Brexit'. At this point both of these options are looking very unlikely. Norway will probably block the UK's accession to EFTA and the EU is highly unlikely to repeat the suite of bilateral deals that it has with Switzerland.
Other options being discussed include:
Whilst there are a number of valid criticisms of the current EU procurement regime and a desire on the part of some to seize the opportunity to re-write the rules, this desire for change needs to be tempered by the following:
In light of the above, it is suggested that reform of the UK public procurement regime is likely to be a low priority for the Government as it seeks to deal with the overall consequences of Brexit. As noted above, any changes to the UK regime will require a positive decision on the part of the Government. As such, it is far more likely to be the case that changes to domestic procurement legislation will be driven by the need to reflect the outcome of the Brexit negotiations and, specifically, the extent to which and the terms on which the UK is able to maintain access to the single market. Whatever route is chosen for the UK's exit from the EU, changes to our public procurement landscape are not expected to be significant and are far more likely to be a consequence of reacting to a wider political solution rather than being an end in themselves.
This article was written by partner Robert Breedon and originally appeared in the January edition of In-procurement.
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