Legislating for Brexit
Zoe Leventhal
Zoe Leventhal
29 September 2016
Legislating for Brexit …..
1
Introduction
1) Article 50 / withdrawal treaty
2) Sources of EU law
3) Legislative / transitional options
4) Examples / how?
Article 50 / withdrawal treaty
• What effect would Art 50 /treaty have on domestic law?
• EU treaties cease to have effect upon withdrawal (see Art
50(3)) but no other immediate direct consequences on either
domestic law or other international treaties
• Reality is – until terms of withdrawal treaty known, predicting
legislative change not possible
• Once Art 50 triggered, 2 years or treaty if earlier, or extension
• So: Treaties aside: various sources of EU law?
2
Sources of EU law (other than Treaties)
• European Communities Act 1972 (“ECA”)
• EU Regulations – directly applicable
• EU Directives – vast majority of which transposed into
domestic law via domestic secondary legislation
• Other primary legislation (e.g. Competition Act 1998)
• CJEU & domestic case law / common law
So, legislating for Brexit is….
3
European Communities Act 1972
• Just repeal it? Supremacy / vires
•
No:
– All directly applicable and directly effective EU law
automatically cease to apply (e.g. Regulations) with
nothing to replace them
– All secondary legislation (e.g. EIA Regulations) made
under s 2 would be ultra vires
– Although primary legislation would remain unaffected
European Communities Act 1972
• Some /significant transitional provision must be required
in immediate aftermath of withdrawal (whatever its
terms)
• To maintain status quo and allow progressive decisions
about retaining various aspects of EU law
• Most likely therefore to be a “saving” of some kind or
sunset type clause (e.g. 5 years from withdrawal) to
allow progressive amendment / repeal to be made
4
Transitional options?
• Repeal of the Act but
– maintaining vires of existing secondary legislation
unless repealed / amended
– provision for Regulations etc to continue as if directly
applicable in meantime
– With provision for relationship with CJEU reference /
case law in meantime (e.g. s 2 HRA?)?
• But, how would subsequent repeals / amendments be
made?
Transitional options (2)
• 3 options:
• 1) all in initial Brexit Act
• 2) initial Act to repeal but subsequent appeals by
secondary legislation
• 3) As 2) but with a combination of primary / secondary to
follow making amendments
5
Transitional options (3)
• Signs are that no clear view from Govt one way or
another – all these options on table (cf SoS for Brexit in
Foreign Affairs Select Committee, 6.9.16)
• But well aware of constitutional objections to doing it all
by secondary legislation – reduced scrutiny
• And impracticability of having primary legislation in place
with all ducks in row pre / at withdrawal
• So options 2 or 3 would appear most likely at this stage
What / when / how?
• Depends entirely on terms of withdrawal & approach to
single market (e.g. Norway / EEA / EFTA) but…
• E.g. environmental law –EIA /SEA/Habitats regs remain
for now, but future harmonization with Directives? Role
for CJEU? New legislation during transitional period?
• E.g. competition law: 1998 Act + EU Regulations &
Directives & secondary legislation: how to unravel?
• E.g. employment / equality law – entrenched?
6
A good Brexit?
7