On 16 January 2017, the House of Commons published a briefing paper on the practical implications of EU law currently implemented in the UK. The referendum vote in favour of Brexit has affected all arenas of social, political and economic life and this is all before invoking Article 50. We have seen the rise and fall in the strength of the pound, the rise of hate crime and the fall of jobs. With this current state of flux and uncertainty, as lawyers we are aware of another stream of ambiguity. What does this mean for the laws that govern us but are from the EU
According to the Eur-Lex database, over 19,000 EU legislative acts are in force in the UK. This encompasses regulations, directives, decisions and external agreements.
A directive is a piece of legislation given by the EU that must be transposed into the national law of the Member States. A regulation is an act of law from the EU which is automatically and simultaneously enforceable in all Member States.
In the UK, there is legislation that gives authority to implement the majority of EU directives through secondary legislation, Statutory Instruments (SIs). This means that there is no need for Parliament to pass a new act to make these EU laws enforceable. The most commonly used legislation to affect this is The European Communities Act 1972, which is the hot topic of the House of Commons briefing paper.
This Act does not specify whether affirmative action or negative action is required in the implementation of the directives. Affirmative action being the need to obtain approval of the laws before they are passed and negative action meaning the law is passed unless there is an objection.
It is estimated that 90% of the EU laws implemented through SIs were laid subject to the negative procedure, meaning they did not require approval before becoming law.
The ease of implementing EU law in the UK has been seen as playing a large role in the loss of control the UK has had over its own governing. Accordingly, this was labelled as one of the reasons for those voting "out" of the EU. As can be seen from the facts above, EU laws are fully entrenched in our legal system simply by their sheer volume.
So what do we know so far about what may happen once Article 50 is triggered and Brexit is underway? The House of Commons briefing paper highlights that Government intends to introduce the "Great Repeal Bill" when they introduce their agenda for the coming year through the Queens Speech. This Bill aims to convert EU laws to UK laws wherever practical and repeal the ECA. Government, and possibly Parliament, will then decide which laws are to be kept, modified or repealed.
If on Brexit day the ECA is repealed, all secondary legislation following from this Act will be deemed to no longer be legally valid. Repealing the ECA will have the effect as if the Act never existed. The Bill will provide a smooth transition on Brexit day for secondary legislation. However, this does not answer the question on EU regulations. EU regulations will cease to have effect in the UK if there is no saving provision following the ECA being repealed.
The Prime Minister wants Article 50 of the Lisbon Treaty to be trigged by the end of March 2017. This will start the two year process of negotiations with the remaining 27 countries to create the best deal possible for the exit. Following the Prime Ministers recent Brexit speech on 17th January 2017, we now know some of the key topics and details surrounding the impending negotiations, however this makes us aware that there is a substantial amount of ground to cover before the ECA is repealed.