2.1 Brexit – amending UK domestic law before withdrawal

After more than 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 will 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 will 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. Without intervention, these Acts of Parliament will automatically continue in force after the 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) of that Act. (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 that implements EU law could not just be allowed to lapse automatically on exit.

Reviewing the above three categories of existing EU laws and deciding what, if anything, to put in their place is a major exercise and has to be carried out rapidly.

The legal process of revising and amending UK laws

This would be a daunting process if carried out by Acts of Parliament.  At Lawyers for Britain, we recommended that we should simply 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 to appropriately reflect the new independent status and external trade environment of the UK.

The government has chosen to go down a more complex route, by introducing the so-called Repeal Bill –  formally entitled the European Union (Withdrawal) Bill. Clause 1 of the Bill will repeal the 1972 Act – a symbolically important but legally entirely unnecessary step in order for the UK to leave the EU. The remainer of the Bill gives continued effect in the UK to most EU law which is directly effective the day before we leave, so preventing a void in the statute book This is coupled with statutory instrument powers given to Ministers to make technical adaptations to EU derived laws which would not operate properly on exit – e.g. because a law is dependent upon an action by an EU institution. More substantive policy-driven changes to EU derived laws will then be made by normal Parliamentary legislation.

Other UK legal provisions needed in preparation for exit

Article 50 of the Treaty on European Union does not provide for any continuing right of the ECJ or other institutions to adjudicate after exit on matters that happened before withdrawal. This is a matter to be tackled as part of the transitional arrangements under the withdrawal treaty, and any agreement reached will need to be implemented in UK law by an Act of Parliament.

It is also necessary to review areas of competence returned by the EU on exit and decide whether those areas of competence should be exercised by Westminster,  or (outside England) 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 local 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 farmers unfairly undercutting prices across the whole UK market.

So it will be necessary to establish a core UK framework policy, in place of the existing EU CAP.  Such a policy would not result in any reduction in the scope of the powers of the devolved legislatures since it would simply replace existing EU powers (although it has given rise to ritualistic claims that it offends their prerogatives). However, the content of the core UK agricultural policy will be the subject of negotiation between Westminster and the devolved legislatures and governments. As a net food-importing nation, the UK will 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 will lead to the UK regaining control of its fisheries up to the boundaries recognised by international law. A sensible conservation-based national fisheries policy will be needed to replace the existing EU policy. Regrettably, the agreement on the transition period (politically agreed but not yet legally binding) would continue the application of the Common Fisheries Policy to the UK for a further 2 years up to the end of 2020.

Conclusions

The task of amending UK domestic law in preparation for exit is substantial but achievable, given the two-year and 9 month period from the date of the referendum for the necessary work to be carried out. If the proposed transition period is formally agreed, that will effectively extend to 4 1/2 years, giving quite ample time for this process to be completed.

The process of revision of our laws should not be treated as simply a necessary chore or a housekeeping exercies. It should also be viewed positively in terms of what can be achieved. During the 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 should be ended with enormous economic benefits.

The UK will 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 well-renumerated bankers in the City or skilled health workers. But the inflow of low-skilled workers should be restricted in the same way as it is from non-member states. The UK should 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.

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