WITH Article 50 to trigger our exit unlikely to be invoked until late this year, we need to consider how to deal with the volume of EU legislation to which we have become subject.
All legislation will continue to apply while our exit is negotiated. We will remain subject to the jurisdiction of the European Court. Vote Leave had suggested legislating to “end the European Court of Justice’s control over national security and allow the government to deport criminals from the EU” but to do so would put us in breach of our current treaty obligations and could result in significant financial penalties.
This existing legislation cannot therefore be simply be abolished. Going forward the UK will want to establish a new free trade agreement with the EU and this is likely to require us to retain much of the single market legislation. The extent to which the UK wishes access to the single market will be a key issue.
Even if the EU free trade agreement did not require it, there are also a range of legislative areas where the UK would need to retain some domestic legislation, such as environmental protection or health and safety. To avoid a legal vacuum, it seems likely following our exit, all EU-derived secondary legislation will remain in force – with certain standard modifications, including the removal of the authority of any EU bodies – unless the UK parliament decided to amend such legislation. Over the subsequent years, officials would then need to review each of the thousands of statutory instruments to decide what laws should be repealed.
Other amendments might also be required to reduce the burden of EU-inspired legislation. New legislation would then be required to replace directly effective EU rules which would no longer be applicable. All those new laws, repeals and amendments would then need to go through a Parliamentary process which would make them subject to the vagaries of the political climate. The scale of this exercise is overwhelming.
• Penelope Warne and Judith Aldersley Williams of international law firm CMS