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Brexit - amending UK domestic law before withdrawal

After over 40 years of membership, there is now a vast body of laws within the UK that are derived from or at least affected by our EU membership.  These fall into a number of categories.

The different kinds of EU law in force in the UK

First, there are 'directly applicable' EU laws – EU Regulations and parts of the EU treaties – that have effect as part of the internal law of the UK and of other Member States, without needing any action on the part of national legislatures or other authorities.  In the UK,  these EU 'directly applicable' laws are given legal effect  via the gateway of Section 2(1) of the European Communities Act 1972.

These directly applicable laws and treaty provisions would all automatically lapse and cease to be part of the law within the UK as from the date of withdrawal. While in many cases it would be either harmless or positively desirable for such directly applicable provisions to cease to apply, there are many instances where it would not be acceptable to leave a vacuum in the law, and it would be necessary to have a new domestic law in place to cover the subject matter. For example, it would not be acceptable to have a vacuum in the law on the licensing of medicines if the UK ceases to be covered by Regulation (EC) No 726/2004 on the authorisation and supervision of medicinal products by the European Medicines Agency.

Secondly, there are many Acts of Parliament that implement EU directives or other obligations. Unless something was done about them,  these Acts of Parliament would automatically continue in force after exit date.  This might be desirable, but on the other hand it might be preferable either to repeal them or at least to amend them in post-Brexit circumstances.  Such decisions would need to be taken on a case-by-case basis – it would not be possible to deal with them all with a single global rule.

Third, numerous UK regulations or other kinds of statutory instruments have been made under Section 2(2) of the European Communities Act 1972 in order to implement directives and other EU obligations. Many of these UK regulations amend Acts of Parliament under the sweeping ‘Henry VIII’ powers conferred by Section 2(2). (A 'Henry VIII' power is one that gives ministers the right to repeal or amend Acts of Parliament. It is named a ‘Henry VIII’ power after the Statute of Proclamations 1539, which gave that King power to legislate by proclamation without recourse to Parliament.)

This large body of UK regulations implementing EU law could not just be allowed to lapse automatically on exit. It would be necessary to go through them and decide to revoke, keep or amend them, case by case.

Reviewing the above three categories of existing EU laws and deciding what if anything to put in their place would be a major exercise and would have to be carried out rapidly. Where EU-derived laws are in force which are not actively harmful, there would probably be a presumption in favour of keeping the substance of them in force for the time being where this is practical, and leaving detailed reform or improvement to the future.  In the case of directly applicable EU laws which will automatically disappear on exit,  this would involve replicating the substance of the EU law in the form of domestic legislation which comes into force on and from exit.

The legal process of revising and amending UK laws

This would be a daunting process if carried out by Acts of Parliament.  However, a more rapid and tried and tested solution is to hand.  That is simply to press into service the existing well-oiled regulation-making power under Section 2(2) of the 1972 Act, and extend it to empower the making of regulations which from the date of exit continue, repeal or amend existing EU-derived domestic law as appropriate to reflect the new external trade environment of the UK.

Thus, these sweeping ‘Henry VIII’ powers, which have been used so effectively to implement the incoming tide of EU law, would be used rapidly to unravel EU law. The advantage of using this existing well-oiled machinery would be that there is an existing system for making these regulations by the appropriate central government department, or by the devolved legislatures where the regulations fall within devolved areas of law.

Given the Prime Minister's commitment to repeal the 1972 Act from the moment of withdrawal, it would be better to write the powers of section 2(2) of the European Communities Act 1972 into a new Act dealing with the law after exit, so allowing the 1972 Act to be repealed in its totality from the date of exit.  The well-tested substance of the legislative machinery of section 2(2) would then be carried forward.

Other UK legal provisions needed in preparation for exit

There are further changes to UK law that would be essential or at least desirable. The Section 2(2) power should also be expanded so as to allow EU laws to be disapplied within the UK in advance of exit if this proves necessary: for example, if there were an attempt to impose damaging or discriminatory measures during the two year transition period prior to exit, or where it is advantageous to dismantle EU regulations before actual exit.

It would be important to clarify the legal position on exit. The ECJ or other EU institutions such as the Commission might argue that they should still have power after exit to take decisions or adjudicate on matters that happened before exit, for example, by giving judgment after exit on ECJ cases that are still pending at the date of exit. Some treaties do provide for the continued exercise of powers after a state has withdrawn:  for example, Article 58(2) of the European Convention on Human Rights provides that the Convention and the jurisdiction of the Strasbourg Human Rights Court continues to apply to withdrawing states in relation to acts taking place before withdrawal.

But Article 50 of the Treaty on European Union does not provide for any continuing right of the ECJ or other institutions to adjudicate on matters that happened before withdrawal. It would be wholly unacceptable if this were to occur, so the 1972 Act should be amended to ensure that acts of the EU institutions taking place after withdrawal are accorded no legal recognition in the UK.

Budgetary powers would also need addressing. Since there might be possible disagreement over the UK’s final years’ membership subscription (the budget contribution and ‘own resources’ payments by the UK), it would also be prudent to repeal with immediate effect Section 2(3) of the 1972 Act, which provides for the payment of these sums by officials without the authority of Parliament. The settlement of any final payment into the EU's coffers would then require the approval of Parliament.

It would also be necessary to review areas of competence returned by the EU on exit and decide whether those areas of competence should be exercised by outside England by Westminster or by the devolved legislatures.  For example, at present agriculture outside England is within the devolved powers of the Scottish, Welsh and Northern Ireland legislatures but their scope of action is hugely constrained by the fact that they, in common with DEFRA, have to implement the EU's Common Agricultural Policy.  In effect, they are all branch offices for Brussels with quite limited autonomy.

Upon exit, the EU's Common Agricultural Policy will cease to have effect, but it will be necessary to have a common UK framework establishing at least the core principles of agricultural and farm support policy across the UK. For example, it would not be acceptable for, say, the Scottish Parliament to give massive subsidies to sheep farmers in Scotland which are not available to sheep farmers in England or Wales on a comparable basis, leading to Scottish sheep unfairly undercutting prices across the whole UK market.

So it would be necessary to establish a core UK policy, in place of the existing EU CAP.  Such a policy would not in fact result in any reduction in the scope of the powers of the devolved legislatures since it would simply replace existing EU powers (although it might give rise to ritualistic claims that it offends their prerogatives). However, the content of the core UK agricultural policy would no doubt be the subject of negotiation between Westminster and the devolved legislatures and governments. As a net food-importing nation, the UK would have a strong interest in replacing protectionist barriers which drive up food costs for consumers above world market price with other forms of farm support.

Similarly, the disappearance of the EU's Common Fisheries Policy on exit would lead to the UK regaining control of its fisheries up to the boundaries recognised by international law. A sensible conservation-based national fisheries policy would be needed to replace the existing EU policy.

Conclusions

The task of amending UK domestic law in preparation for exit is substantial but achievable, given the two-year period for the necessary work to be carried out. It should also be viewed positively in terms of what can be achieved.

In the process of review of UK law, priority should be given to reforming or sweeping away EU-based laws that interfere with the competitiveness and efficiency of the UK economy.

For example, freed from harmonising directives, significant reforms could be made to intellectual property laws to extend exemptions, to restrict scope and terms of protection that confer no economic benefits, and to simplify areas of the law that are unnecessarily complex thanks to EU interventions. The EU’s insistence that rights owners should be allowed to prevent ‘parallel imports’ of
their own goods from outside the EU could be ended with enormous
economic benefits.

The UK would regain control of migration from other EU states. EU citizens who are settled and productively working here should not be put in fear of being sent home, nor would we wish to damage our economy by excluding highly paid or highly skilled workers, such as highly paid bankers in the City or skilled health workers. But the inflow of low-skilled workers could be restricted in the same way as it is from non-member states. The UK would certainly want to take more robust measures than are now permitted by EU law to exclude or remove persons suspected of being a danger to the public or engaged in criminal activities.