By Jamie McNish, Trainee Solicitor

At 11.00pm on 29th March 2019, the United Kingdom (UK) will repeal the European Communities Act, and leave the European Union (EU).

Unless further action is taken, this will result in a whole raft of laws and regulations, across a variety of sectors, dropping out of our legal system.

In order to protect against the uncertainty which such a mass-expunging from the statute books would create, both the UK and Scottish governments are currently adopting legislation which would see existing EU law preserved – insofar as it can be – in the UK post-exit day. Such legislation has at its heart the goal of keeping “business as usual” when it comes to the law in force in the UK.

The status of EU law in the UK, and why action is necessary

There are a number of issues resulting from the status of EU law in the UK which are problematic when seeking to bring about a smooth transition from a UK in the EU to one outside it, and which require to be addressed in order to avoid a “cliff-edge” departure from EU law.

  1. EU law comes in different forms, with different pieces of legislation having different force and standing. While certain measures of EU law require an implementing measure of national legislation in order to have effect, others – notably EU Regulations – do not require such action at national level. Such Regulations are “directly applicable”, meaning that they apply to EU member states as soon as the EU institutions pass them as law. There is therefore no UK legislation transposing the contents of such Regulations into UK law, and when the UK leaves the EU, there is nothing which preserves their principles in our own legislative regime. Without remedial action, these are principles which would simply cease to apply.
  2. Currently, EU law has “primacy” over UK law. In the event of a conflict between a provision of EU law and of UK law, the EU law prevails. When the UK leaves the EU, this doctrine of primacy will disappear, and large numbers of provisions which are currently relied on would lose their effect, being judged to have been impliedly repealed by UK legislation adopted subsequent to them. Again, this would result in rules which are currently relied on simply falling away.
  3. While certain EU law measures have been transposed into UK law, this has often been by way of secondary legislation passed by Ministers, rather than legislation by Parliament. This is made possible by the European Communities Act, which provides the legal basis for such secondary legislation, but which is to be repealed as part of the exit process. Even where EU law has been implemented into UK law, the method of leaving the Union would still result in a number of these principles ceasing to be law, by virtue of this legal basis disappearing.
  4. Finally, even if all the written text of the various EU measures was to be preserved, this would not maintain the law in the manner it is currently being implemented. The provisions have been interpreted by the European Court of Justice over the years, and those interpretations inform how the law is applied. If EU law were to be maintained, without the court’s interpretation likewise being maintained, then the effect would be a marked change in how the law would apply to individuals, companies, and others.

What does the EU Withdrawal Bill do?

The Bill – in addition to repealing the European Communities Act – seeks to prevent this sudden disappearance of important laws and regulations by maintaining the status of existing EU law within the UK’s legislative body. This is to be done by defining current EU law, or EU-derived law, as “retained EU law”, a new and special category of UK law.

This “retained EU law” would be part of the UK legal system, and would have primacy over existing UK law, in the manner EU law does currently. The existing judgments of the European Court of Justice would be maintained and their interpretations applied insofar as they impact on “retained EU law”. In essence, the Bill seeks to maintain the status quo in terms of the application of the law pre and post-exit day. The goal is that there would be no noticeable change in the regulatory regime brought about by the fact of leaving the EU, or at least, any changes would be kept to the minimum necessary. Where the law will thereafter develop is another question, and not one which the Bill seeks to address.

There are vocal critics of the Bill, notably the House of Lords, which has taken issue with the manner in which it maintains EU law (but not the goal of doing so), the breadth of powers which are given to Ministers to amend laws, and how devolution is dealt with. Amendments are on the table, and it is not clear at present whether the Bill in its current form will be reflected in the final Act. There are constitutional and political barriers to be addressed. Any potential disagreements about form, however, the overall goal and effect of the Bill is likely to remain – that being that there should be minimal noticeable changes to the legal landscape immediately post-exit.

That is not to say that there will be no changes.

‘Henry VIII’ powers, and amendments to the current legal landscape

There has been much discussion surrounding the inclusion of so-called “Henry VIII powers” – named after the Tudor’s proclivity for using Royal Proclamations to legislate – in the Bill. These powers would allow Ministers to amend “retained EU law” to “prevent, remedy, or mitigate” any “deficiencies” therein, as they consider “appropriate”. Anticipated “deficiencies” include references to EU institutions and regulatory bodies in the laws, or to obligations owed towards the EU, which would be anachronistic in the legal system of a non-member state. These would, therefore, be removed, and replaced with references to new or equivalent UK regulatory regimes where necessary.

Such powers would circumvent the need for Parliament to be involved in amending the laws. It is argued by proponents of the Bill that, such is the sheer scale of transposition and amendment required, Parliament would be overloaded in dealing with the issue, and the use of Ministerial powers is, therefore, necessary to complete the task within the timescale. There is undoubtedly some truth in this, and the requirement for these powers to be used in some manner is acknowledged even by those who criticise the breadth they are given in the current Bill.

That breadth is, however, one of the main factors holding up the progress of the Bill through Parliament, and attracting the attention of large numbers of amendments. And it is something which adds an element of uncertainty when considering what the final outcome will be. We do not know what may be considered a “deficiency” and, therefore, attract amendment by Ministers. While the examples given are straightforward pruning of references to the EU, and similar, the Bill is framed in a manner which is apt to include more substantial changes.

The starting point of “business as usual” cannot, therefore, be guaranteed without clarification on what will be amended as a “deficiency”, and what the general regulatory landscape will be post-exit. Individuals and businesses will require to know what frameworks will be maintained or replaced, and which regulators will have power in their spheres of interest. While we will not see huge gaps emerge in the statute book, these are areas on which greater clarity and certainty is required.

The Scottish Government has put forward its own Bill, addressing the retention of EU law as it applies to devolved issues, on which we comment here.