One of the main arguments put forward by the ‘Leave’ campaign during the referendum debate was that too many of our laws were being ‘made in Brussels’. It was argued that leaving the European Union would enable us to make our own laws once again. So now that there has been a vote to leave, what does that mean for European law in the United Kingdom?
Well for the moment, nothing. As we explained in one of our earlier articles, we remain in the European Union until the process for leaving set out in Article 50 has been completed, which could take a number of years. At the moment, the start of the Article 50 process has not even been triggered and comments from the new Prime Minister and the new Secretary of State for Exiting the EU suggest it is unlikely to happen before the end of 2016.
While we remain a member of the EU then, all existing European laws (and any new ones passed between now and the date we leave) will continue to be part of our law in the United Kingdom.
Even after that date, it is unlikely that there will be much change for some time. Although estimates vary as to how much of our law comes from Europe (and the House of Commons Library has suggested it is somewhat nonsensical even to try to do such a calculation), what is certainly the case is that over the 43 years of our membership, European law has had a huge influence. If all European law (even if it were possible to identify ‘all European law’) were to be repealed the day after we left, there would be a huge black hole in the middle of our legal system. All kind of regulations, affecting employment law, consumer protection, fisheries, data protection and all kinds of other things, will need to stay in place until Parliament has had time to review and, if it wants to, amend or replace them with something ‘more British’. That could take years.
In fact one of the first things that Parliament may, ironically, have to do is pass a law specifically incorporating all existing European law into United Kingdom law.
Since 1973, European law has become part of our law in different ways. Section 2(1) of the European Communities Act 1972 provides that any provisions under the EU Treaties which are to have direct effect shall be deemed to be part of UK law without further implementation. ‘Regulations’ passed by the European Union have such direct effect and so form part of our law without Parliament having to pass any British legislation to implement them. If the 1972 Act were to be repealed in order to give effect to Brexit, then all of that part of the law would suddenly cease to be part of our law without anything to replace it, which could cause chaos for contractual and other arrangements. Therefore it is likely that Parliament will need to pass some kind of provision saying that whatever EU law is part of our law at the moment of departure will be deemed to continue until repealed or amended.
Other aspects of European law are contained in ‘Directives’. These basically tell the Member States what their law needs to say but then leave it to each Member State to put in place national legislation to give effect to it. So, for example, the British Working Time Regulations contain provisions which bring British law into line with the EU Working Time Directive. Most of these provisions are brought into British law by means of statutory instruments passed under powers contained in section 2(2) of the 1972 Act. So if the 1972 Act is repealed, some other piece of legislation will need to be passed at the same time to ensure that all those statutory instruments remain in force.
Passing new laws to confirm that existing European laws will remain part of United Kingdom law may prove politically difficult to explain to those who voted ‘Leave’ in order to get away from European law! There does not seem to be any alternative however as Parliament simply could not come up with a whole suite of British alternatives to every piece of European law before we leave.
Even when we leave, and cease to be bound by any new European laws brought in afterwards, we may find that much of our law continues to mirror those new European laws. For example, the European Union passed new legislation called the General Data Protection Regulation earlier in 2016. It will come into force in 2018. Even if (which seems unlikely) we have actually ceased to be members of the European Union by then, our own law may have to introduce provisions which are very similar (or even identical). Businesses wanting to transfer data in and out of the European Union will face restrictions on doing so if the country to which it is being transferred does not have similar levels of protection to those in the European Union, so it is likely that the United Kingdom will need to keep its data protection law in line with EU law to ensure that we are not placed at a disadvantage.
Like so much of what must now happen following the referendum result, sorting all of this out will be complicated and it is not yet clear how it will all happen. Hopefully someone somewhere is working on a plan.