UK: UK Seeks To Fill Brexit Legal Black Hole

Last Updated: 26 July 2017
Article by Richard Isham

European Union (Withdrawal) Bill

The UK Government has published the European Union (Withdrawal) Bill, one of the objects of which is to put into UK law all existing EU legislation and European Court judgments, so that on day 1 after Brexit it will all become part of domestic UK law.

The purpose is to avoid a damaging "black hole" in UK law where the UK has for many years relied on EU legislation and EC judgments to do its legal work.

This will mean that, it terms of practical day to day legal compliance, for instance as concerns employment, at least in theory, nothing will change on the day after Brexit.

There are an estimated 12,000 EU regulations in force, 8,000 or so statutory instruments used to implement EU legislation and 186 Acts which incorporate a degree of EU legal influence.

Once Brexit has happened the UK Government proposes to grant itself powers under the proposed Act based on the Statute of Proclamations of 1539 (first introduced by English King Henry VIII – he of the six wives – which enabled him to rule by proclamation) to make, overtime, the changes it sees fit (without further reference to Parliament) to the many EU rules co-opted into UK law by the Withdrawal Act.

If only it were that simple

  • The wholesale transposing of EU law into UK legislation will not be possible. Large tracts of UK law may stop working following Brexit for example, because they are dependent upon EU institutions.
  • The process presents a "unique challenge" because "the body of EU law is found in a number of different places, and in a number of different forms" – treaties, regulations, directives, decisions, delegated or implementing acts (the so-called "tertiary" legislation), recommendations and opinions (which, although not legally binding, can have legal effects in that national courts who are under a duty to take them into account when interpreting domestic legislation designed to implement them) and other forms of "soft" EU law, for example: resolutions, conclusions, communications, codes of conduct, guidelines and notices.
  • The UK opposition parties and the devolved UK governments (Scotland, Wales and Northern Ireland) have and will table numerous amendments in order to ensure that any proposals that amount to a change in UK law have to be placed before both Houses of Parliament and be subject to full democratic and Parliamentary scrutiny. Particular concerns have already been raised in relation to employment/workers' rights and human rights.
  • The negotiations for the terms of the UK exit and its future relationship with the EU are likely to run up close to the Brexit deadline (March 2019). The outcome of these negotiations will no doubt affect the terms of the Withdrawal Bill. This will leave little time for Parliament to scrutinise it properly and so reduce the likelihood it will be passed by the deadline.
  • Another concern likely to produce Parliamentary resistance to the Withdrawal Bill is the fact that it deliberately does not convert the EU's Charter of Fundamental Rights into UK law. This would leave key human rights and workers' protection, mostly introduced by the EU, vulnerable to Ministerial decree.

It really is a case of "so much to do, so little time to do it in". All concerned may need to keep in mind the words of Otto von Bismarck: "Politics is the art of the possible, the attainable – the art of the next best."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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