Brexit is the withdrawal of the United Kingdom (UK) from the European Union (EU), and it was, and continues to be, one of the most divisive dilemmas in British society. On the 1st of February 2017 the UK Parliament passed a vote accepting the Brexit Bill with 498 votes to 114. The Bill will now face further discussion before it can become a law. This article focuses on the potential impact of Brexit on the legal system of the UK.
The general principle of EU law requires Member States to implement and adopt it in their domestic legislation, and to apply it directly if the matter touches EU Regulations and Treaties. Thus, as soon as Brexit takes place, the rules effect in the UK. The same would be with the regulations which would be passed after actual withdrawal.
Theresa May, acting as allowing a Member State to leave the EU, by 31st March 2017. The exit agreement shall then be concluded on behalf of the EU by the European Council, acting by a qualified majority (which is defined in Article 238(3)(b) of the Lisbon Treaty), with the consent of the European Parliament. That means that the UK would be able to leave the Union only by 2019 as there will be at least a two-year negotiation period after the exit notification.
On 2nd October 2016 UK Parliament announced the proposed introduction of the ‘Great Repeal Bill’ which shall repeal the European Communities Act of 1972 and transfer all the existing EU rules into the UK legislation. Therefore, the Bill was designed to fill the gap which will arise after the EU Treaties cease to apply in the UK; as they cover such areas as worker`s rights, environmental regulations and the regulation of financial services. Mrs. May has provided that with the implementation of this bill there will be an opportunity to amend, repeal, improve or retain any aspect of any EU law which is currently in force in the UK. The Bill should be announced in the next Queen`s speech and is likely to pass into law during 2017.
As to the decisions of the Court of Justice of the European Union (CJEU), they will not have the same effect over the English courts as they did before, since they will cease to be binding. However, from a practical point of view, English courts might continue to refer to the CJEU decisions, at least until Brexit has taken place. The reason for that is that the previous CJEU decisions have affected many areas of English case law, and the courts might still benefit from the advice of the CJEU on particular matters.
The next legal challenge in relation to the UK`s withdrawal is the membership of the European Economic Area (EEA). Senior lawyers assume that the triggering of Article 50 of the Lisbon Treaty will not lead to the withdrawal from the EEA, as this Article was drafted in order to make a provision for withdrawing from the EU and not from the EEA. For the Member State to withdraw from the Single Market, Article 127 of the European Economic Area Agreement should possibly be triggered. The question could be resolved by the debate as to whether there is a need for an Act of Parliament to begin the process of withdrawing from the EEA. Though, the outcome of the vote might be exponentially less certain than the one by Article 50 of the Lisbon Treaty. The reason is that the question on whether the UK should stay in the EEA was not addressed in the EU Referendum in June 2016, and because of that Parliament might have more discretion in terms of a vote. However, the Prime Minister has announced during her speech on 17th January 2017 that the UK government is not aiming to keep its membership in the EEA; instead it will focus on a close trading relationship with the EU, involving a free trade agreement. That means, that following Brexit, the UK might aim to join the European Free Trade Association (EFTA).
As might been seen from the above discussion, the government of the UK is probably aiming for a ‘soft’ exit from the EU, in other words, it aims to minimize the impact of Brexit on its legal and political systems.
Considering the legal point of view, on completion of the exit agreement the UK law will no longer be subjected to EU Treaties and Regulations, as they are not requiring implementation into national law, and thus, they will simply cease to apply. As to the EU Directives, they will remain implemented in UK legislation; following the ‘Great Repeal Bill’ there would be an opportunity to amend, improve, or exclude them as was mentioned above. As to future law, the UK will no longer be required to adopt any new EU legislation, and the judgments of the CJEU will cease to bind the English courts, unless it would be agreed otherwise by the exit agreement or any future one.
On the other hand, from a more practical point of view, it would be arduous for the UK to separate all of the EU legislation from the national one, and it would be just as difficult to replace it. The reason is that as soon as the UK will stop complying with the EU provisions it will cease to trade with the Union. Moreover, ignoring a decision of the CJEU will lead to the same result, as it directly interprets EU law. However, this might be countervailed by joining the EFTA.
In 2017 the law in the UK will not change to a great extent. However, the law will face significant changes by the summer of 2019, after the negotiation period will come to an end, unless this is extended. Thus, in 2019 the executive, the legislative, and the judicial branches of the UK`s government should expect to face a lot of challenges both from the inside and outside the United Kingdom.
Debbie Heywood, ‘Brexit and UK law in 2017’ (Taylor Wressing , December 2016) https://www.taylorwessing.com/download/article-brexit-and-uk-law-in-2017.html accessed 02 February 2017
Joosje Hamilton and Andrew Sheftel, ‘Brexit – UK and EU legal Framework’ (Norton Rose Fulbright, June 2016) http://www.nortonrosefulbright.com/knowledge/publications/136975/brexit-uk-and-eu-legal-framework#autofootnote1 accessed 02 February 2017
Rowena Manson, ‘Theresa May`s `great repeal bill’: what`s going to happen and when?’ (The Guardian, 2nd October 2016) http://www.nortonrosefulbright.com/knowledge/publications/136975/brexit-uk-and-eu-legal-framework#autofootnote1 accessed 02 February 2017
Ellie Flynn, ‘How did MPs vote on the Brexit bill, when will Theresa May trigger Article 50 and what happens next?’ (The Sun, 1st February 2017) https://www.thesun.co.uk/news/2755385/brexit-bill-theresa-may-trigger-article-50-vote/ accessed 2nd February 2017
Institute for Government, ‘Brexit Explained: the Great Repeal Bill’ (Institute for Government, 2016) https://www.instituteforgovernment.org.uk/brexit-explained/brexit-explained-great-repeal-bill accessed 2nd February 2017
Written by Roman Yundt