Opinion: Michael Aubrey, lawyer, Mills and Reeve


On leaving the EU, we will lose 40 years’ worth of EU rules and regulations – not just the famous ones relating to bendy bananas, but also numerous provisions relating to agriculture, not least the Basic Payment and Countryside Stewardship schemes.


Not all laws will disappear automatically; it depends whether they are ‘directly applicable’.


A Commons Library briefing revealed this is the case for roughly 5,000 of the 20,000 EU legislative acts in force.


Generally, whether or not an EU law is directly applicable depends upon whether it is a regulation (which automatically becomes UK law) or a directive (which needs an Act of Parliament). Only the latter will automatically survive.


As Transfer of Undertakings (Protection of Employment) rules were required by a directive, they could remain, as could those relating to VAT. The Basic Payment Scheme and the Countryside Stewardship Scheme were introduced following EU regulations and will therefore disappear.


Rules relating to food labelling have been introduced via directive and regulation, so some will remain in force while others will not.


The Government said the proposed Great Repeal Bill will not only repeal the European Communities Act 1972, but will also re-enact many EU rules and regulations which would otherwise disappear.


There will be uncertainty while civil servants sift through the vast amount of legislation, deciding what to retain, amend or repeal.


There will also be the issue of deciding the relevance of past cases.


Little will change immediately, but be careful of assuming that what looks the same actually is the same.


It is wise to think about how legislation changes may affect your business:


  • If you have tax planning to do, think about it sooner rather than later.
  • Be careful about long-term agreements; try to build in flexibility so you can adapt to change.
  • Check any existing contracts, particularly any which are cross-border.
  • Consider the use of a ‘Brexit clause’ in agreements, but be clear about how it will operate and what you wish to achieve.
  • If you are a landowner wanting someone else to farm your land, contracting agreements are likely to be safer than tenancies, as these maximise flexibility and you remain in control.


Above all, remain confident; do not be pushed into taking steps which do not make sense for your business.

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