Looking forward to “Brexit Day”(?)
The plan for exiting the EU is evolving. Slowly. Business are pragmatic though, and will adjust to the new way of the world. What most businesses are finding hard to deal with however is the lack of certainty over when Brexit will happen and what shape it will take. So, are we any closer to knowing exactly what to expect from Brexit in terms of legislative changes? The Government has made 2 recent announcements of note on Brexit.
Firstly, Theresa May has said she will invoke Article 50 before the end of March next year. Which means that potentially “Brexit Day”, the day when the UK exits the European Union, could happen in Spring 2019. Between now and then there are hurdles however, not least because of the outcome of the decision in Miller and Santos which, unless the ruling is overturned on appeal, means that a Parliamentary vote is required before Article 50 can be triggered. Given the complexity of the arrangements there is also a high probability of some slippage to the timetable.
Secondly, the Prime Minister announced that there will be a “Great Reform Bill”, which will repeal the European Communities Act 1972 (the legislation that brought the UK into the EU in the first place) and will transpose (incorporate) EU law into UK law “wherever practical”. Although the Government has not published the Bill (we are told to expect details in the next Queen’s Speech (Spring 2017)) so the contents are not yet confirmed, the House of Commons library has published a paper setting out issues it considers likely to be addressed in the Bill.
One of the key areas identified is the extent to which directly applicable EU law (in the form of Regulations) will be transposed into UK law, and which and in what ways existing EU laws may be subject to change. But given it is estimated that over 13% of UK legislation enacted between 1993 and 2004 alone was EU in origin, this is a huge task, predicted to take up to 10 years. Also there are laws which originate from the EU, but because they were in the form of Directives, were written into UK law (like the Working Time Regulations). These would all potentially need to be separately identified, reviewed and then repealed or amended if necessary.
Another consequence of repealing the European Communities Act is that the UK courts will no longer, after Brexit, give primacy to EU law. Our courts will not be obliged to follow the judgments of the EU Courts, and although they may opt to interpret laws which are EU in origin in a way compatible with EU jurisprudence, some divergence over time seems likely.
Industries will no doubt be lobbying the Government to try to ensure legislation critical to them (like EU passporting rights for the financial services industry, free movement and immigration status) are first on the Government’s list to address so they can adjust their business models and plans accordingly.