What does Brexit mean for UK Law?

16 Sep 2016

So far, nothing at all!

Nothing has changed legally since the vote to leave the EU. The UK is still a member of the EU. The referendum result itself is not binding; it is advisory.

The mechanism for leaving the EU has been much discussed in the press. Under Article 50 of the Treaty on European Union “any member state may decide to withdraw from the Union in accordance with its own constitutional requirements”. The European Council must be notified and any notification will trigger the start of a 2 year negotiation of the terms on which the UK will leave the EU. Interestingly, the 2 year period can be extended with the agreement of the European Council and it may be that this could be called upon. If the UK goes for a model which requires it to negotiate trade deals afresh worldwide then 2 years may well be insufficient. Some commentators have pointed to the fact that when Greenland left the EEC it took 6 years just to negotiate fishing rights.

When the UK does leave then there will be an impact on the legal framework. As things stand EU laws are implemented in the UK in a variety of different ways. EU Regulations apply directly to the UK without the need for further national legislation. Accordingly when we leave the EU these will cease to apply. EU Regulations include Brussels I and Rome II which are concerned with applicable jurisdictions and laws in the case of cross border disputes. In contrast EU Directives must be implemented through national legislation in order to be effective. Many Directives, such as the Working Time Directive which deals with working hours and holidays, have been adopted by Statutory Instruments (SI) on the back of the European Communities Act 1972. When we leave the EU that Act will be repealed or amended and any SI arising from it will cease to have effect, unless expressly preserved by any new laws. Some UK primary legislation has been prompted by the need to implement EU Directives. Those Acts will continue to have effect unless expressly repealed. For example, the Health and Safety at Work etc Act 1974 and the ‘six pack’ regulations which arise under it would not automatically cease to have effect.

Whatever your views on the rights and wrongs of Brexit it seems unlikely that the current legal framework will, in the end, undergo wholesale alteration. More minor alterations are more likely, particularly where the implementation of EU law has led to anomalies. It also seems inevitable that the programme of domestic legislation which would otherwise have been planned will inevitably be impacted. Whether this is a good or a bad thing will depend on your point of view of the planned legislative programme.

Kelvin Farmaner is a Partner and Head of the Dispute Resolution Group at Trethowans LLP. He is also a Member of The Forum of Insurance lawyers and sits on FOIL’s “European Issues” Focus Group.