European Law Monitor

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Why Article 50 won't be triggered anytime soon

Recently, the UK government has announced that invoking Article 50 may be delayed. Predictably, since theh various Brexiteers have been baying for Article 50 to be invoked as soon as poosible, arguing that it is undemocratic for the UK government to not give effect to the EU referendum result. The government delaying the invocation of Article 50 is not down to any desire to circumvent the will of the people, but instead reflects their awareness of the legal implications of doing so, which most people are singularly unaware of.

Once Article 50 is invoked, then the EU treaties and EU law stops applying to the UK two years later. At that point the European Communities Act, which is the Act which made us Members of the EU, and which gives effect to EU law, would be either expressly or impliedly repealed. As soon as the European Communities Act is repealed then overnight thousands of legislative acts (approximately 17,000) will stop applying to the UK. This scale of legal disruption is equivalent to throwing a hand grenade into your legal system, as overnight thousands of laws will stop applying.

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This means that once the European Communities Act 1972 was repealed, Directives that had been enacted into UK law would remain part of the UK legislative system but Regulations would not (unless they applied by virtue of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.  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

 

 

Therefore, if the government wants to avoid legal and economic chaos (which it will) then it will need to have reviewed all existing EU law, identified the laws it wants to keep, passed those laws back into the UK system,  and complete this process within two years of Article 50 being invoked, so there are no legislative gaps post Brexit. Failure to manage the legal implications of Brexit would result in legal and economic chaos. For example, the City of London, whose wealth underpins the UK economy, is governed by the rules on free movement of capital and economic and monetary policy. According to the above table there are approximately 527 EU laws in that area alone, including the legal framework on credit transfers that the City uses every second of every day. Only nine of those are directives and therefore part of UK law. The other 519 (which includes the rules on credit transfers) would all be repealed once the European Communities Act was repealed, which would happen two years after the UK government had invoked Article 50.

The problem is that avoiding this legal and therefore economic chaos is almost impossible to acheive, given the sheer number of laws that need to be repatriated, and the time that it takes Parliament to pass each one. The UK Parliament passes about 100 Acts of Parliament a year, so on that basis Article 50 will be invoked in 168 years. This is the fairest and most democratic process, as Parliament will play an active role in any changes to existing EU legislation being proposed, and will allow a proper process of scrutiny to take place. This approach will reflect the importance of Parliamentary sovereignty within our constitution, but it will take time, and that is one thing that is very short supply once Article 50 is invoked.

The alternative is that all of these laws are repatriated using some form of delegated legislation like statutory instruments, which are usually written by an individual minister, without any form of scrutiny or public participation at all. Statutory instruments are notoriously un-democratic, as they by pass the will and involvement of Parliament. They are also too open to abuse by the person tasked with writing the law, as they can introduce all sorts of changes without any form of challenge. Basically, if no one objects within fourty days of the statutory instrument being laid then it becomes law. Once a statutory instrument is passed as law they are notoriously difficult to challenge, so you are ususally stuck with them. They have the advantage of speed, but even using the process, it would probably take ten years to repatriate all of the EU law that needs to be repatriated, in order to maintain legal certainty, and during those ten years Parliament would effectively become redundant, and law would be made by unelected faceless bureaucrats who are not accountable to the electorate.  As a variation on this, the government could task the civil service to draft all this law. Given that the UK civil service includes approximately 2000 lawyers they would have the capacity to deal with the task, but at the cost of democratic accountability. The ironic thing is that many Brexiteers voted to leave because they wanted Parliamentary sovereignty and more democratic accountability, but the time constraints imposed by Article 50 means they are likely to end up fundamentally undermining both.

Within the legal profession there is a general consensus that these are the key legal issues to be addressed. Martin Howe QC, who is part of Economists for Britain, and therefore linked to Vote Leave, wrote a paper called "Transforming the UKs relationship with the EU; the legal framework"., in which he states the following

"After over 40 years of membership, there is a vast existing body of laws within the UK that either directly stem from the EU, or were passed because of EU obligations, or at least are affected by the EU.

First,  there  are  directly  applicable  EU  laws  –  EU  regulations  and parts of the EU treaties – that form part of the internal law of  the  UK,  via  the  gateway  of  Section  2(1)  of  the  European  Communities Act 1972. These would all automatically lapse and cease to be part of the law as from the date of withdrawal. However, in many instances 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.

Second, there are many Acts of Parliament that implement EU directives or other obligations. These would need to be repealed, kept in force or amended, 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  have  been  made  under  Section  2(2)  of  the  European  Communities  Act  1972  in  order  to  implement directives. Many of these regulations amend Acts of Parliament under the sweeping ‘Henry VIII’ powers of Section 2(2).

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.

These  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  these  three  categories  of  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. The best solution would be  simply  to  press  into  service  the  existing  regulation-making  power  under  Section  2(2)  of  the  1972  Act.  This  could  be  done  by  extending  it  to  authorise  existing  Acts  and  regulations  that  implement EU obligations to be repealed in an orderly way, and replaced or amended 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 government  department,  or  by  the  devolved  legislatures  where  the regulations fall within devolved areas of law."

What Martin Howe QC is proposing is that the future legal framework post Brexit should be drafted by unelected government departments and ministers using statutory instruments, without any form of Parliamentary scrutiny, consultation, or input from affected stakeholders. EU law is implemented in this way because it has already gone through an extensive consultation and discussion process, involving both the European Parliament and the Council, which is open to the public to participate in, whereas using this mechanism to repatriate EU law into UK law would involve no discussion, consultation or involvement of any changes in the law to the electorate or to businesses. This has the advantage of speed, but rather makes a mockery of the idea that Brexit would bring about a return of Parliamentary sovereignty, and a golden age of democracy.  People voted to leave the EU in part because they wanted to uphold the sovereignty of Parliament, and they wanted control over our laws. Yet now, Leave campaigners are making clear that the only way to acheive Brexit in a sensible timeframe, is for Parliament to be bypassed altogether, and law making becoming the main function of the government and civil service.

So what do those who voted for Brexit actually want? Are they prepared to have Brexit at the cost of fundamentally undermining Parliament, democracy and democratic accountability, which will give them Brexit within possibly a decade? Or do they want Parliament to be involved in scrutinising the legislative changes being put forward, and uphold the supremacy of Parliament in our constitution, but accept that in doing so, the whole process will be substantially extended in terms of time? Those are the choices. It is not an option for the UK Parliament to pass an Act of Parliament saying that all EU law will carry on applying until we get around to changing it, as the UK is a duallist state, which means that Parliament has to actually pass a law in order for the courts to give a ruling on it. (More information on this can be found here).

Basically, the UK can have a speedyish Brexit process, but only at the cost of democractic accountability and democracy. Or they can take the time to do it right, but that will all take time. They can't have both. So choose.