Legal issues of economic disintegration: government procurement and BREXIT

This paper examines some of the European Union (EU) and World Trade Organisation (WTO) legal issues that emerge for the United Kingdom’s (UK) public procurement law and policies following Brexit. It analyses the consequences and sequencing of international negotiations that will now have to take place because the UK has triggered Article 50(2) of the Treaty on the European Union (TEU). For once the UK revokes the European Communities Act 1972, it will no longer be obligated to follow either the Treaty on the Functioning of the European Union (TFEU) or the EU Procurement Directives. Nor will the UK be subject to the commitments the EU has signed up to on behalf of the UK in the WTO Government Procurement Agreement (GPA) and in its Regional Trade Agreements (RTAs). After looking at the legal issues concerned with sequencing, the paper moves on to assess the domestic, centrifugal forces that will also impact on the UK’s public procurement law post Brexit. For under the Devolution Settlement of 1998, the competence for public procurement was devolved down to the regions of Scotland, Northern Ireland, England and Wales. The paper postulates that the legal issues of disintegration that have surfaced under Brexit could potentially fragment a coherent UK wide procurement policy, competition and value for money internally; as well as externally towards the WTO GPA, the EU and other regional procurement agreements. The paper puts forward a competition approach to address some of the potentially negative consequences of Brexit undermining value for money, transparency and integration in the UK’s lucrative markets for government procurement. It concludes with the limited hope that the legal and economic issues and challenges since the UK’s referendum on membership of the EU will be a salutatory lesson for all other nations.