Brexit and the law.

With the UK leaving the EU following the Brexit vote, it seems like a good time to consider what effects this will have on the legal position of the UK.

Our laws are intertwined with the EU

Whilst many may see Brexit as an opportunity to discard laws which have been “forced” upon us by the EU, the reality is that after 43 years of EU membership, our legislation is now well and truly mixed up with those laws which have come out of Brussels. These laws cover everything from insolvency to health and safety and employment law.

Trying to simply rid ourselves of EU laws as perhaps many voters thought we could, would leave gaping holes in our legal system and for this reason it will be necessary for the Government to convert existing EU legislation into UK law.

There may be an argument from some in favour of reviving old UK laws which have been superseded by EU laws which were “imposed” upon us. However, the likelihood of this happening is very low as many of those laws would now be outdated and not necessarily suitable for the modern times we live in.

What will happen next?

There’s no doubt that the UK needs to undertake a huge review of legislation as a result of the Brexit vote. The enormity of the task required to review and create UK national law cannot be underestimated, and neither should the cost.

New international treaties will be needed and negotiations for these will take place with EU and other countries to supplement the existing rules of the World Trade Organisation.

Existing trade agreements will take many years to negotiate, finalise and sign, a process which cannot be avoided as the UK will no longer automatically be able to make use of the existing EU trade agreements in place.

There is a very real chance that the UK’s trade position will be weakened going forward as, for example, we won’t be part of negotiations between the EU and the USA in relation to the Transatlantic Trade and Investment Partnership agreement.

Can’t the UK just pass a law to return legislative powers from the EU to the UK?

Yes, technically a law could be passed to do this but it would be inadequate. EU laws rely on other entities which don’t exist in the UK to give effect to their provisions. The UK would need to identify and/or create a suitable body to exercise the missing role performed by EU bodies on a case by case basis. No easy task.

Do we really need to have a long, costly legal review? Has that much been affected by the EU?

Some legal areas such as contract law, land law and tort (e.g. negligence) have been largely unaffected by the EU’s influence over our legislation (other than in the area of consumer protection). The effect of this means that the use of English law will still be relevant for international contact and dispute resolution.

The same cannot be said of the law relating to intellectual property which has been widely affected by the harmonisation of EU and UK law in this area. Also, competition law could not easily be extracted from the EU without leaving a gap, despite the UK having its own parallel system in this area.

There is no doubt that there will be lots more information to come relating to the law and Brexit. Whatever happens, very significant cost and resource will be needed to deal with this complex and widespread area.

Unravelling the statute books isn't a job for the faint-hearted.

By Daniel Gardener

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