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The  roadmap to hell: repealing the European Communities Act would result in legislative chaos and would have long term, negative consequences on the UK economy

It has been argued that the way to safely leave the EU, involves the repeal of the European Communities Act. This is a disastrous approach for the UK to take as repeal of the ECA would result in the immediate repeal of approximately 17000 EU legal instruments, which would lead to at least a decade of legal uncertainty and substantial damage to the UK economy. The legal implications of Brexit and the time that it would take to resolve them would damage the UK economy for around 10-20 years. This is not a matter of opinion but a matter of legal fact.

What is very clear is that those suggesting this approach do not understand the legal implications of what they are proposing, which strongly suggests they either haven't looked at it or they don't understand EU and UK law. Nor do they understand the complex withdrawal process that would need to take place if Britain voted to leave the EU. Not only would passing the laws they are suggesting in their roadmap put the UK in breach of its Treaty obligations, but repealing the ECA would lead to the most chaotic withdrawal process. Both of these points were made yesterday by Dominic Grieve QC on Newsnight.

In order for trade to flourish, there must be legal certainty – society and businesses must know and understand the legal framework in which they are operating. Without this legal certainty, foreign direct investment collapses, and trade grinds to a halt. If the UK left the EU, and EU law ceased applying to the UK, then the UK legal framework would have to come from UK law alone.

Under the EU legislative system, there are two main ways in which EU law applies – through either EU Regulations or Directives. Regulations, once passed at EU level, apply automatically across every EU country, without having to be passed as law at national level. In the UK, it is the European Communities Act which gives effect to EU Regulations.  Directives, once passed at EU level, have to be implemented into the UK legal system by Parliament passing an Act of Parliament or some form of delegated legislation. Directives implemented by UK legislation consequently form part of the UK legal system, whereas Regulations do not – they only apply to the UK whilst the European Communities Act remains in force.

This means that in the event of Brexit and the European Communities Act 1972 being repealed, Directives that had been enacted into UK law would remain part of the UK legislative system but Regulations would not (unless they applied by virtue of international law or because they had been implemented into UK law anyway).

Unfortunately, Directives only make up a very small part of the EU law affecting the UK, as the following table demonstrates. In total, there are about 18,000 EU legal instruments, of which only about a thousand are Directives and therefore already part of the UK legal system. The other 17000 are Regulations and other EU legal instruments, all of which would stop applying to the UK once we repealed the European Communities Act 1972. This would be like chucking a hand grenade into the UK legal system. If you would like to see what laws we would lose once we repealed the European Communities Act, please follow the links in the last column of the table.

 

Area of EU law

Total number of EU acts relating to that area of law

Number of directives that are part of UK law

Approximate number of legislative acts (laws) that would be missing from the UK legal system if the UK pulled out the EU altogether

Where can I find more information on what  regulations may no longer apply?

Economic and monetary policy/free movement of capital (these laws substantially affect the City)

527

9

518

Click here

Environment, consumers and health protection

1965

145

1820

Click here

Science, information, education and culture

424

9

415

 Click here

Agriculture

2729

157

2572

 Click here

Free movement of goods/customs union

1093

7

1086

 Click here

Free movement of workers/employment law/social policy

646

74

572

 Click here

Freedom to set up a business in another EU country/freedom to provide services

357

69

288

 Click here

Fisheries

1410

1

1409

 Click here

Transport

651

77

574

 Click here

Competition

575

4

571

 Click here

Taxation

173

28

145

 Click here

Relations with the rest of the world

3994

4

3990

 Click here

Energy

361

16

345

 Click here

Industrial policy and internal market

1364

256

1108

 Click here

Regional policy

322

2

320

 Click here

Law relating to undertakings (businesses)

113

31

82

 Click here

Foreign and security policy

622

1

621

 Click here

Area of freedom, security and justice

705

36

669

 Click here
 

18031

926

17105

 

 

Despite all the passionate rhetoric , arguing that Britain should pull out the EU altogether, the legal reality is that rapid withdrawal from the EU, particularly where the UK pulled out of the EU altogether would result in legislative carnage, which would in all probability lead to economic and social chaos for a sustained period of time. Some people have accused the government of scaremongering, but an analysis of the legislative impact of Brexit, and the time that it would take to resolve and repatriate the existing legal framework, strongly supports the government’s view that pulling out the EU altogether would put a bomb under the UK economy.  Repealing the European Communities Act  would lead to the worst possible legal and economic outcomes for the UK. Doing so would not result in the UK safely leaving the EU but rather is a shortcut for legal and economic chaos.

If you would like to know why the UK Parliament couldn’t just pass an Act of Parliament stating that all these Regulations would carry on applying, and why it would take between 10-20 years to resolve these legal issues please click here.