Filling the post-Brexit black holes in UK law

Brexit Insights
By Natasha Durkin, Senior Associate with Shepherd and Wedderburn LLP

31 January 2017

Natasha Durkin explains the legal consequences of repealing the European Communities Act 1972, and how the Government currently plans to avoid creating resultant black holes in UK law.

Article 50 has been triggered, starting the two-year countdown to the UK’s exit from the European Union. The Great Repeal Bill is proposed as the way to make sure the UK’s legal arrangements are fit for purpose once the UK has left the EU.

The 1972 Act will be repealed by the Great Repeal Bill when enacted. When that happens all EU law directly applicable in the UK will cease to have effect and will no longer be part of UK law. This is a large, diverse body of law covering, to take a few examples: agriculture, consumer safety, equality measures, chemical safety, trademarks and security.

Directly applicable EU laws

These directly applicable EU laws are contained, not in UK legislation, but in around 5,000 EU regulations, EU decisions and some Treaty provisions. If account isn’t taken of this body of law on repeal of the 1972 Act, then there will be “black holes” in the UK statute book. Important aspects of civic and commercial life could have no governing rules or law at all. The sheer size of the body of directly applicable EU law means that it is practically impossible for Government to replace it with equivalent UK legislation on repeal of the 1972 Act.

Many of these directly applicable laws are significant and complex:

The Common Agricultural Policy is implemented across the EU by four regulations covering rural development, funding, direct payments to farmers and market measures.

The EU Data Protection regulation gives EU citizens control over their personal data.

“REACH” provides a comprehensive legal framework for the management and use of chemicals in the EU, creates a single market and the European Chemicals Agency.

At the end of last year a package of measures was introduced to strengthen the EU’s capacity to fight terrorist financing and organised crime, including regulations on cash controls for those entering/leaving the EU and on criminal asset freezing.

The UK Government proposes transposing, wholesale, all existing directly applicable EU law into UK law on repeal of the 1972 Act. This should, in broad terms, deal with the black hole problem. That said, transposition of some directly applicable law may not be possible, and some will be subject to ongoing negotiation.

Areas of directly applicable law will simply cease to have effect on Brexit; the right EU citizens have to stand for election as an MEP can’t be transposed into UK law, nor could the UK courts’ ability to refer questions of EU law to the Court of Justice. These types of laws all depend on continuing UK membership of the EU.

Other directly applicable EU laws are highly contentious (free movement of people and goods) – these depend on co-operation with the EU and will be subject to extensive negotiation. As such, the rules on trade will only be workable if agreement is reached with the EU post-Brexit.

The Great Repeal Bill proposes that ministers should be given the power to adjust statutory instruments to give Government the flexibility “to take account of the negotiations with the EU as they proceed”. This will be politically contentious, as it impacts on the level of scrutiny parliament will have over future changes to existing (EU related) legislation.

UK laws giving effect to EU legislation

In addition to directly applicable EU law, many UK statutes give effect to EU legislation – the House of Commons estimates that 13.2% of UK law between 1993 and 2004 was EU related. This legislation will remain on the statute book post-Brexit, but some Acts will need to be amended to reflect Brexit negotiations and the UK’s approach to certain EU standards and agencies.

It's called the 'Great' Repeal Bill for a reason

The challenge shouldn’t be underestimated – the outcome of negotiations with the EU is unlikely to be known when the Great Repeal Bill is introduced, which means it will remain unclear what changes will be required to the body of existing EU law post-Brexit, whether ministers will have the power to amend primary legislation, and the extent to which any changes will be subject to full parliamentary scrutiny. Inevitably, there will be significant uncertainty, and no doubt unforeseen consequences, both in law and politics as we move towards Brexit day.

Post-Brexit, it will be critical for the uncertainties to be effectively dealt with to ensure legal stability.


Read the full version of this article in the March 2017 edition of CA magazine.

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