EU legislation and UK law after Brexit – EHS perspectives

By ,

Author – Coline Madelain | EHS Regulatory Analyst, Nimonik
Email – cmadelain@nimonik.com

This article aims at providing 

  • Simple understanding of the basic legal mechanisms of EU legislation, and how it impacts UK law
  • Some general and simplified understanding of how/why Brexit will impact UK law, and as a consequence, will impact companies and people doing business with the UK

A brief history of 3 years of Brexit political and juridical saga

The European Union (EU) is an economic and political union involving 28 European countries. It allows free trade and free movement of people (to live and work in whichever country they choose) and ensures to European citizens a certain level of protection of human and fundamental rights.

The United Kingdom (UK) joined the EU in 1973. On June 23, 2016 the United Kingdom held a referendum on whether the UK should remain in the European Union (a.k.a. Brexit). Leave won at 52%. The referendum turnout was quite high at 72%, with more than 30 million people voting.

On 29 March, 2017, the UK notified the European Council of its intention to leave the EU, thus triggering Article 50 of the Treaty on European Union (TEU), the formal process to leave.

Following the procedure laid down in Article 50 TEU, the Prime Minister of the UK at that time, Theresa May, negotiated and concluded an Agreement with the EU in November 2018. The agreement set out the framework for its future relationship with the Union, including details of the transition period, and citizens’ rights. It also covered the so-called “backstop”, which ensured that no hard border would exist between Northern Ireland and the Republic of Ireland after Brexit.

In order to come in force, the Agreement needed to be ratified by UK institutions and also receive “Royal Assent” following the UK legislative process. After the Agreement was voted down three times by UK Parliament, and Brexit date extended twice – first to 12 April 2019 and then to 31 October 2019 – Mrs. May resigned in July 2019. The new Prime Minister Boris Johnson then negotiated further changes to the Withdrawal Agreement but the Parliament once again asked for an extension which the EU approved on October 28, 2019, until January 31, 2020.

How EU legislation currently affects UK law: 

As the UK is a member of the European Union, the EU legislation is part of the UK legislation in two ways: 

  • Some EU legislation, principally the Regulations, are directly applicable to the UK. This means that it applies automatically in UK law, without any action required by the UK. This legislation is published on the EUR-Lex website.
  • Other EU legislation, mainly the Directives, require domestic implementing legislation before they become national law. UK legislation that implements EU legislation is published on legislation.gov.uk, as part of the UK statute book. 

What will a no-deal scenario after January 31,2020, look like?

Now that the EU has agreed to extend Brexit once again, nothing has changed in the UK from a legal point of view. But, the Prime Minister has received backing for a general election on Dec 12, 2019, the results of which could change the course of Brexit. For Brexit to smoothly go through the current government has to gain a majority in the Parliament. If the Dec 12 election ends with a minority government once again, the chances of a no-deal Brexit would increase.

If after January 31, the UK Parliament fails to reach an agreement and the EU does not allow another extension then on 1 February 2020, the UK will no longer be subject to EU law. This would cease all kinds of economic, political, border control, health cover, citizen rights cooperation between the UK and the EU (here are some examples on the impact this may have on economic operators and people).

In practice though, the UK has taken measures to prevent such chaos by adopting The European Union (Withdrawal) Act 2018. This Act received royal assent on 26 June 2018, and will come into force on Brexit day (so far, on 31 January, 2019).

The principal purpose of the Act is to provide a legal continuity and a functioning statute book on the day the UK leaves the EU.

The Act will do three principal things:

  • It will repeal the European Communities Act 1972 (the ECA) – the channel by which parts of the EU law (EU Treaties, EU regulations and decisions) were given direct force in the UK domestic law
  • Immediately before the exit day, it will reimport (or convert) most of the EU law that applies in the UK as ‘retained EU law’ equivalent to UK domestic law. 
  • It will give the UK Government specific powers to amend the ‘retained EU law’ in order to correct deficiencies in that law arising from the UK’s withdrawal from the EU.

The UK government has created an EU Exit web archive collection, which is capturing a wide selection of documents from EU legislation to the point of EU exit, and will provide a comprehensive and official UK reference point for EU law as it stands at EU exit.

In preparation for EU Exit, over 4 million web pages from EUR-Lex have already been captured and published on the EU Exit web archive, and will incrementally be added to this collection until the UK exits the EU.

Conclusion 

The EU Withdrawal Act is without a doubt of huge significance. The principle of incorporating existing directly applicable EU legislation into domestic law is welcome in principle as it will provide some certainty for businesses after Brexit. The legal reality, however, will not be one entirely of continuity.

Although the existing body of EU law will be retained, many EU legal mechanisms will be significantly changed, as they may no longer fit with the UK legal system. To work as domestic laws ‘retained EU law’ will require either immediate amendment or different reading and interpretation by the UK Courts. The more the “adjustments” from UK institutions will be brought to the ‘retained EU law’, the more the law might vary,  eventually evolving quite differently from the EU legislation.

Further readings :

UK Brexit and Environmental law implications in UK

Sources 

https://eur-lex.europa.eu
http://www.legislation.gov.uk
https://www.bbc.com
https://news.sky.com
https://www.blackstonechambers.com
https://www.twobird.com