Clause 2(1) of the European Union (Withdrawal) Bill 2017-19 (known as the Great Repeal Bill), which passed its second reading in the House of Commons on 11 September, provides that EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day. And yet the majority of EU institutions and agencies which constitute the EU bureaucracy, and which are empowered by EU law to carry out the functions of EU-derived legislation, will cease to have jurisdiction to carry out those functions for the purposes of the UK.
Fieldfisher's Regulatory Group has taken a bird's eye view of the EU agencies to address the extent to which UK civil services will be required to pick up the administrative tab on exit day.
While we have summarised many of the key learning points from our analysis, if you would like to gain access to the assessment report, please email John Cassels, and/or George McLellan in the Regulatory Group.
- Virtually all of the functions of the central institutions of the EU will be redundant for UK-purposes following Brexit and their functions will be repatriated to their UK equivalents. However, there remains some possibility that the UK will need to continue to recognise the jurisdiction of the CJEU to arbitrate over some matters arising out of the UK's re-negotiated participation in various EU agencies.
- Active strategic partnerships will be required between at least 7 EU agencies and the UK. This is for EU agencies whose functions cannot be effectively de-centralised. In each of these cases our view is that active mutual cooperation is essential for both the UK and the EU, for example to ensure air safety, security, and the transit of electricity and gas.
- The functions (or some of the functions) of around 28 EU agencies will need to be repatriated to equivalent authorities in the UK. In these cases, the UK authorities will be required to introduce new remits and/or will pick up regulatory responsibility currently held by EU agencies. In some cases, the UK agencies may be required to maintain compliance with EU regulation through adopting changes to relevant EU law into the UK.
- Our analysis suggests around 21 EU agencies will be completely redundant for UK purposes following Brexit, representing about £471 million in UK budgetary contributions annually. In some instances, existing UK agencies may establish formal information sharing arrangements with some of these EU agencies, but for the most part there would be no need for active participation by the UK agency into the activities of the EU agency (or vice versa).
- We have estimated that the UK's budgetary contributions to the administrative functioning of the EU institutions and agencies identified in our table totals around £620 million annually. Of this total, around £471 million may be considered redundant expenditure for UK purposes following Brexit. The UK contributes about £35 million annually towards the administrative budgets of EU agencies with which strategic partnership will be necessary following Brexit, and it is likely that the UK will need to continue making substantially similar contributions. The remaining administrative expenditure, comprising £114 million annually, constitutes the UK's contribution to EU agencies whose functions will need to be repatriated to their UK counterparts.
The known legal framework
Two paragraphs of the Department for Exiting the European Union's (DExEU) February 2017 policy paper, The United Kingdom's exit from and new partnership with the European Union White Paper, discuss future status and arrangements with regard to how the UK will carry on the functions and work of EU agencies for UK-purposes post-Brexit. In summary, the white paper says: i) there are a number of EU agencies which are established to enforce particular regulatory regimes, for pooling knowledge and for information sharing; and ii) the UK Government will discuss the future status and arrangements with regard to these agencies through the Brexit negotiation process.
The Great Repeal Bill deals with the mechanics of how the functions of EU agencies will be dealt with in the Brexit process. In particular, cl.7(1) and (2) enables a Minister to make regulations in order to prevent, remedy or mitigate any deficiency in retained EU law arising from Brexit, including deficiencies which arise because the EU law confers functions on EU entities which no longer have functions in the respect conferred for UK purposes. Clause 7(5) goes on to empower Ministers to provide for functions of EU agencies to be i) instead exercisable by a public authority (whether or not newly established or established for the purpose) in the UK, or ii) replaced, abolished or otherwise modified.
Purpose and methodology
We set out intending to provide the most basic overview of all the institutions, agencies and organisations that together constitute the bureaucracy of the European Union (EU); the purpose being to consider how their respective functions may be repatriated into the United Kingdom's civil services following Brexit.
Clearly, summarising all of the remits administered within the EU's extensive regulatory environment, and usefully identifying how that same functionality may be preserved in a way that will secure the United Kingdom's post-Brexit future was easier said than done (as we trust the same has been the realisation of thousands of civil servants in Whitehall and across the EU).
In any event, we have prepared a table identifying all entities broadly comprised within the EU, and identifying:
- each EU agency's basic function and role
- what we have identified as each agency's UK equivalent
- any statements made about Brexit by either the EU agency or UK equivalent
- the budget allocated to each agency by the EU budget
- our estimate of the budget appropriated by each agency that may be tied to the UK's contribution
- our view on how the functions of each
agency will be taken care of for UK purposes following Brexit, in
- for some EU agencies, the UK's ongoing active involvement will be essential following Brexit
- we consider a few EU agencies functions will be redundant for UK purposes following Brexit
- in many cases, a new or existing UK agency will need to pick up some or all of the functions currently performed by their EU counterparts
There are about 7 EU agencies with whom the UK's continued partnership will be essential following Brexit. Such agencies, as recognised in DExEU's white paper, include those which regulate aviation safety, maintain electricity transfer arrangements, and deal with energy regulation, data protection, defence policy, policing, and approaches to security and environmental policy. These agencies tend to manage either infrastructure or regulation that has an essential cross-border element. In these cases, the extent of the cross-border element renders centralisation of some aspect of their bureaucratic function to be essential for both the UK and the member states of the EU.
For a number of other EU agencies, although ongoing partnership may not be essential in order to maintain safety or economic functionality, it will be necessary for UK-based agencies to pick up the functions and remits of their European counterparts. The extent to which functions and remits will need to be repatriated varies in degree. The UKIPO, for example, will need to continue to share information with the EU IPO, as it would with any other intellectual property office around the world. However, aside from being of assistance to one another, the two will be able to divide their functions and co-exist without active input of either into the functions (or budgets) of the other. At a different degree, if the UK wishes to continue to observe Community Plant Variety Office (CPVO) functions, it will need to resource either a new or existing UK agency to replicate the relevant functions of its EU counterpart.
There are also EU agencies whose functions will be wholly redundant for UK-purposes after Brexit. For example, although the goings on at the EU Authority for European Political Parties and European Political Foundations (APPF) may continue to be of interest to the UK's Foreign & Commonwealth Office after Brexit, the UK will not be required to establish a new alternative. Likewise, many UK departments and agencies may have existing translation services, though it is fair to say that the functions carried out by the Translation Centre for the Bodies of the European Union will not need to be repatriated to a UK agency.
Publicly, while the overall approach of the UK Government to the Brexit process and the UK's status afterward (in terms of customs, trade, immigration, etc.) remains quite uncertain; uncertainty is particularly acute in respect of the dozens of EU agencies which carry out the bureaucratic functions required by EU law.
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.