How to beat the clock to ensure UK law makes sense post-Brexit

Lucy Fergusson
British legislation contains more than 12,000 EU regulations (Source: Getty)

With Brexit negotiations now underway in Brussels and eight bills announced in the Queen’s Speech dedicated to measures around the UK leaving the European Union, the UK faces the most challenging legislative agenda in its history. It does so with a minority government and a tough deadline.

There are more than 12,000 EU regulations and 7,900 statutory instruments which implement EU legislation. So laws must be passed to prevent legal black holes on 30 March 2019 when the UK withdraws from the EU. Businesses will need to know what rules to abide by. Consumers will expect their rights to carry on. Markets must have legal certainty to remain open and liquid.

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In preparation for leaving, the UK will have to establish new legislative frameworks covering complex areas including customs and trade, immigration, nuclear safeguards, agriculture, fisheries and international sanctions. Each area will be a moving target, as policies evolve and negotiations continue. The demands on civil servants and ministers will be massive, and they will have little time to focus elsewhere.

The least controversial part of the legislative agenda should be “domesticating” EU law in areas where no policy change is needed, to ensure continuity on the day of Brexit.

But the task is complex. UK and EU law are closely interwoven, and, as written, many laws work on the basis that the UK is a member of the EU. When the UK leaves, we will need to preserve the law as it stands and adapt it so that it still works in the new context. Otherwise, in many cases, it simply won’t make sense.

This adaptation process carries risks. Rewriting the law is a challenging, time-consuming and expensive task. It may have unintended consequences and create doubt as to the meaning of the law, creating distractions and inefficiencies when they can be least afforded. Large volumes of change multiply these risks. Problems are even more likely if, because of time pressure, change is made under delegated powers with less parliamentary scrutiny.

An alternative approach to rewriting vast volumes of EU-derived law is needed. This week, the International Regulatory Strategy Group (IRSG) in collaboration with Linklaters has proposed such an approach in order to ensure continuity, certainty and legal stability at the point of Brexit.

We have suggested that the government can make most of the changes required with a principles-based approach and just a small number of rules of statutory interpretation that would apply to existing EU legislation and UK implementing legislation.

This principles-based approach could potentially remove the need for thousands of man-hours of work in government – and many more in industry as businesses try to work out what has been changed. It could avoid the need for large numbers of statutory instruments and extensive powers for government to change primary legislation. It could prevent technical legal changes from dominating the agenda, freeing time, cost and resources that could be better spent on other issues. It could also promote proper parliamentary scrutiny in the law-making process.

This proposal reduces the scope for human error and ensures intuitive and consistent outcomes across all areas of law. Crucially, it can be done quickly and is not dependent on the EU talks.

Its ultimate outcome would see individuals and businesses benefiting from upfront legal certainty, with full confidence that their rights and obligations will continue as a matter of UK law.

Taking this approach would therefore show the government’s commitment to the sovereignty of Parliament and the rule of law.

Our proposals are not a panacea. The government will still need to consider the resources, procedures and legal powers of UK departments inheriting EU functions. And domesticating EU law can only resolve conundrums at home – it cannot deal with anything that requires the EU’s agreement. But we hope it would relieve pressure on the government and Parliament, freeing up resources to focus on other tough decisions and trade-offs faced by the country over the next two years.

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