April 29, 2024
Full article
It is March 2019. Two years have passed since Prime Minister Theresa May triggered Article 50 of the Treaty of European Union, so firing the starting gun on twenty four months of unprecedented negotiations. Perhaps we have reached a trade deal with the remaining twenty seven member states – or perhaps not. Either way the UK is now no longer a member of the EU or the single market. Much of the political and economic landscape facing us then is hard to predict. But surely one thing we do know is that we will no longer be subject to EU law?
Unfortunately things are not quite that simple. Since 1973, EU law has entered the UK’s domestic law in huge quantities and covers a vast range of areas from agriculture to trade to anti-terrorism. Separating it out and removing it will be a major undertaking which certainly won’t happen automatically the day after Brexit.
The starting point will be a repeal of the European Communities Act 1972. This is the statute which allows EU law to take effect in the UK. It also makes EU law supreme over domestic law. Finally it obliges the UK Courts to interpret all legislation in accordance with EU legal principals. Repealing the ECA is therefore a necessary starting point but is only the beginning. This is because much of EU law has found its way into our legal systems (and of course there is more than one legal system in this country) through Acts of Parliament and secondary legislation. In other words, even after the ECA is repealed, very many UK laws will be wholly or partly based on EU law. These Acts will remain in full force and effect even after we leave the EU. So Brexit may mean Brexit politically, but it doesn’t mean much for UK law without a lot more work!
Does this matter? Theoretically it might be possible to leave this legislation on the statute books however much of it will now be redundant and/or politically unacceptable in a post-Brexit UK. It will, therefore, be necessary for the UK parliament to act to repeal this unwanted legislation. One superficially attractive option would be a so called “Henry VIII” Act. This would be a short piece of legislation passed by Westminster giving the Government power to repeal all EU legislation by statutory instrument. There are, however, some fundamental problems with this. Parliament would have no opportunity to scrutinise any of the legislation which it was repealing. That poses serious issues for democratic accountability. Secondly, much of this law will in fact have to be retained or else repealed or simultaneously replaced with something broadly similar. A good example of this is employment law. Workers’ rights in the UK largely derive from the EU. Clearly it would be unacceptable and unworkable to repeal employment legislation covering a whole range of workers’ rights without replacing it with an equivalent domestic regime. Indeed Theresa May’s recent twelve point plan for Brexit expressly acknowledged this with promises to retain and build on current employment rights.
It therefore seems inevitable that the UK Parliament is going to have to scrutinise vast quantities of legislation on a piecemeal basis deciding which parts require to be left alone, which repealed and which amended. This is going to be an extremely time consuming job for both parliamentarians and drafters. Parliamentary time which might otherwise be used debating domestic reforms to health or education is going to be in short supply.
The situation will be further complicated by devolution. To take Scotland as an example, EU law touches on devolved areas on which the Scottish Parliament would normally legislate as well as matters reserved to Westminster. If the UK Parliament wishes to legislate on these devolved areas as part of its efforts to divorce EU and domestic law, the Sewel Convention (now set out formerly in the statutory form in the Scotland Act 1998) requires it to obtain the consent of the Scottish Parliament. Securing such consent is likely to be controversial given the Scottish Parliament’s position on Brexit and the very different political priorities of the two Parliaments.
Even once the repeal and amendment of domestic legislation is complete, it is unlikely that will be the end of matters. The ECA gives precedence to EU law over domestic law. It also requires the UK Courts to interpret all domestic law in accordance with the principals of EU law and subject to the decisions of the Court of Justice of the European Union. We can assume that will be politically unacceptable post-Brexit. However the UK courts will still be called on to interpret the legislation in the future and questions will then arise as to, for example, the status of European court judgements for preserved law.
So in conclusion, in the brave new world of March 2019, the process of giving legislative effect to Brexit is likely to be lengthy and cumbersome. Parliament will inevitably be tied up for years to come reviewing, amending and re-enacting legislation. This will result in less time for it to legislate on other matters, potentially leaving a backlog of legislation needing passed with in the future. There is also a risk of tension, if not outright conflict, between Westminster and the devolved Parliaments. For the UK’s legal systems, March 2019 is just the beginning.
Rosie Walker is a partner in our Dispute Resolution Team specialising in commercial litigation and public law. She successfully acted for the Right Honourable Alistair Carmichael MP in the first election trial in Scotland for fifty years.
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For More Information Contact:
Rosie Walker
Mobile: 07841 921 684
Direct Dial: 0131 516 5374
Email:rwalker@gilsongray.co.uk
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.
