Divorcing EU plus some kingly advice
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Article 50 has been invoked, but Brexit uncertainty looks set to remain for some time, writes John van der Luit-Drummond
The Phoney War for Brexit is over. On 29 March 2017, 279 days after the UK voted to leave the European Union, the prime minister finally pulled the trigger on article 50 to regain British ‘sovereignty’. It was, Theresa May said, ‘a great turning point in our national story’ from which ‘there can be no turning back’.
In her six-page letter to EU Council president Donald Tusk, May called for the ‘deep and special partnership’ to continue, hinted that British companies will ‘align with’ EU rules and institutions (such as the European Court of Justice), and warned of the security implications for both the UK and the bloc if a mutually beneficial divorce agreement is not reached.
The day after invoking article 50, the UK government revealed its Great Repeal Bill white paper, legislation then aims to repeal the 1972 European Communities Act and take the UK out of the CJEU’s jurisdiction. But despite its grand title, the bill will in fact transfer a huge volume of EU law into UK law – including CJEU precedent – and therefore avoid a ‘black hole in our statute books’. Parliament can then ‘amend, repeal, and improve’ laws as necessary – effectively rebranding EU law as British.
But with the bill affecting every part of UK life, this will be no mean feat. The white paper does not put a ‘single figure’ on the number of laws to be ‘corrected’, but, according to Thomson Reuters, over 52,000 – both EU regulations and directives – have been introduced in the UK since 1990. This figure underlines the scale of the challenge ahead. So, just how will May ‘take back control’?
Controversially, the bill will confer wide-ranging Henry VIII powers on ministers to amend law without parliamentary approval. There is a fear, however, that legal protections – for environmental standards and employment and consumer rights – will be labelled business ‘red tape’ and cut. Lawyers have described the provision of these monarchial powers as a crucial constitutional issue that should receive close scrutiny and potential challenge.
Some law firms are already gearing up for the unintended (or otherwise) consequences of this ‘legislative pruning’, ready to test any executive overreach in the courts. Bindmans, for example, has launched a ‘Brexit outcomes’ service for unions, local authorities, and universities, advising on refused residence and citizenship applications for EU nationals and their families.
Sadly, the firm anticipates an upsurge in requests for workplace discrimination advice and legal support when public authorities fail to adequately respond to hate crime victims. ‘A great many individuals and businesses feel unsettled, concerned, and even frightened,’ says Bindmans managing partner Alison Stanley. ‘But all have rights that can be proactively protected and asserted.’
Solicitors will need to remind their clients that, despite the article 50 starting pistol being fired, EU law remains in effect and will do so for the next two years. Even after that period, businesses operating within Europe will likely be required to operate under both UK and EU law, creating headaches for those law firms and clients who do business across jurisdictions.
‘While some clients have taken precautionary steps to give flexibility in reaction to changing trade environment, regulation, and UK legislation, there is insufficient certainty at this stage to react one way or another,’ comments Sidley Austin partner Nick Brittain. Agreeing, Kieran Jones, head of insurance at Weightmans, adds: ‘UK businesses remain in a state of uncertainty, unable to make any plans of substance for the outcome of the negotiations.’
But what of the legal sector itself? Kingsley Napley partner Iain Miller explains that, although EU law firms are unlikely to face significant regulatory restrictions when operating in England and Wales, the position is still uncertain for UK-based firms that operate across the EU. ‘These firms may still need to establish an EU-based entity to preserve access but the nature and extent of their difficulties are still bound up with the negotiations.’
This uncertainty will remain a while longer, especially considering Jolyon Maugham QC’s challenge in the Irish courts over the revocation of article 50 is yet to be heard. Still, we are firmly on the path to leaving the EU. The Brexit chess board has been set and the government has made its first move, its ‘King Henry’ powers ready and waiting. What pawns it will sacrifice, however, remain to be seen.
John van der Luit-Drummond is deputy editor of Solicitors Journal