The 'conscious uncoupling' of EU law

Constructing a scheme to amend, replace, or eliminate existing European law is likely
to require years of demanding effort, writes Paul Stanley QC

European law, Lord Denning memorably said, is 'like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.' In the aftermath
of the Brexit referendum,
the process of pumping it out and mopping it up is going to occupy lawyers for many years.

Even before one reaches the threshold, one encounters the question raised by Lord Pannick QC and other constitutional experts: can the government give notice under article 50 of the Lisbon Treaty? With great respect to those who have expressed a contrary view,
the answer seems clear: it can.

The European Union (Amendment) Act 2008 added the Treaty of Lisbon to the treaties covered by the European Communities Act 1972. Under section 2(1) of the 1972 Act,
'all… powers… from time to time created… by or under the treaties… shall be recognised and available in law'. Article 50
is not excepted. By giving effect to the Lisbon Treaty, parliament has already recognised the government's power to exercise the right of withdrawal under article 50. The exercise of that power is within the prerogative as conventionally understood.

It is objected that by exercising that power the government may, without specific parliamentary sanction, radically alter individual rights. So it can. But although
the consequences are especially extensive in this case, that is business as usual so far as the
Act is concerned. One of the
Act's main effects is to allow
the government, by executive
act and without specific parliamentary authority, to
enter into legislative instruments, within a supranational intergovernmental organisation. They alter the rights and obligations of people in the UK: that is something detractors have complained about.

Perhaps it is ironic that those who were least concerned about the antidemocratic implications of this scheme are now playing the 'parliamentary sovereignty' card, while those who professed to be most concerned about them are complacently content to allow the government to act without further recourse to parliament. But whatever political points may be scored, the legality seems clear.It is also clear, however,
that the exercise of the right
of withdrawal under article 50
is only the beginning of a delicate process of 'conscious uncoupling', in which parliament is bound to be deeply involved.

At some point, the existing treaties will 'cease to apply' to the UK. What will that mean for UK law? Recall that EU law flows into UK law in two ways. First, via treaty rights and legislation that are automatically part of our law, thanks to section 2(1). Once the treaty ceases to confer such rights, they will cease to apply too. That, however, would cause chaotically rapid change. One task for parliament is almost certainly going to be to adopt legislation that maintains these provisions in force, pro tem, so that they can be repealed or amended in an orderly way. Realistically, some sort of general presumption of continuity
is going to be necessary.

The second way in which rights flow into UK law is through EU instruments, which become part of our law through primary or (more commonly) secondary legislation. In those cases, the existing legislation should continue in force unless and
until it is repealed or amended, so the presumption of continuity applies automatically.

The process of first maintaining and then gradually amending, replacing, or eliminating existing European law can hardly all
be accomplished by primary legislation. It is likely to require extensive delegated legislation, and constructing a practical and legitimate scheme is going to
be tricky. If the process is to be carried out under delegated powers, then broad authority over a wide area will have to
be handed to the executive.
How will that be supervised?

If, on the other hand, the process is to be carried out by parliament, then the legislative programme will be crammed with largely technical matters
for years. It will be hard to arrive at a scheme that strikes the
right balance.

On top of this, it is almost certain that when the UK does leave the EU, it will do so under agreed terms. Those terms are likely to include new rights and powers, and primary legislation will be required to incorporate them into UK law.

Meanwhile, there will be problems about how disputes are resolved. In particular, the ability to obtain the opinion
of the Court of Justice of the European Union (CJEU) on points of disputed interpretation or application - which may be relevant either to directly or indirectly effective rights - will disappear long before EU law itself is out of our system.

But the CJEU's jurisprudence will probably not stand still during the hangover period,
and it may continue to issue opinions in cases involving the remaining member states that bear on rights and obligations that will remain part of English law. English courts are going to need to work out what weight
to give the CJEU's developing jurisprudence. (All the more complicated because, without
a UK voice on the court, the CJEU's approach may shift.)

The issues are deep, highly technical, and of profound constitutional significance.
It is likely to take many years
of demanding effort to effect
the quiet revolution that will
be required.

Paul Stanley QC is a barrister at Essex Court Chambers @EssexCourtLaw essexcourt.com