Making social science accessible

11 Sep 2017

Constitution and governance

Some fourteen months and two weeks after Britain voted to leave the European Union, the UK government has presented in parliament the much-awaited European Union (Withdrawal) Bill, or Great Repeal Bill as it is so dramatically known. Much has been said about it elsewhere, with some very insightful commentary from Professor Mark Elliot, Professor Steve Peers or Professor Michael Ford QC, to name but a few.

It is common ground that the Bill proposes the repeal of the European Communities Act 1972 from the day the UK leaves the EU, that pre-exit EU law will become UK law, and that the government will have broad quasi-legislative powers (known as Henry VIII powers because of the legislative powers conferred to government).

In fact, it is likely that if the Bill becomes an Act following its process through parliament and the Lords, it will be essentially unchanged. One of the chief controversies is the role that post-Brexit EU law will play in the UK, which is the subject of this comment.

The European Union (Withdrawal) Bill sets out two phases regarding the role of EU law in the UK legal regime: pre-exit (section 5) and post-exit (section 6). The current situation – where the EU is supreme – will remain unchanged until the leaving date. When Britain leaves the EU, all existing EU law will become UK law and will remain supreme, but all new EU law will no longer have effect.

The Bill, therefore, assumes that EU law can be divided in pre and post-Brexit without difficulties, but the reality is much more complex than this clear-cut scenario. For example, what would happen if an EU law provision that had been integrated into the UK legal order is subsequently declared invalid by the European Court of Justice (ECJ)? In theory, UK courts would need to consider that provision valid and binding and ignore the judgment of the ECJ.

Moreover, EU law cannot be interpreted without understanding its context and objectives. The reality is that, even outside of the EU, UK courts will have to consider the on-going development of EU law. If the UK wants to trade with the single market, it will need to do much more than just “keeping half an eye on it”.

The single market represents a giant marketplace that requires those seeking access to it to comply with its rules. Sanctions for anti-competitive practice against American multinational companies such as Google, Apple and Microsoft bear witness to this.

Indeed, it seems possible that the UK government has already reluctantly accepted that the eventual deal will be intrinsically linked to membership of the single market, and therefore to the European legal order. The recent papers published by the UK government dealing with cross-border civil judicial cooperation and resolution of disputes in an eventual partnership agreement, consider a framework very similar to the European Economic Area (EEA).

To start with, the UK wants to retain membership of the Lugano Convention. This convention extended EU provisions on civil judicial cooperation to European Free Trade Association (EFTA) countries. The UK can join the convention if it joins the EFTA or there is unanimous agreement of all of its members.

If the UK joints the Lugano convention, UK courts will be bound by the ECJ decisions (a ‘back door’ for the indirect impact of the ECJ) and will have to accept and recognise the decisions made by other courts in EEA countries (e.g. UK courts will give automatic validity to the decisions of an Spanish court).

Moreover, the UK has also pledged to “be a leading member in the Hague Conference”. In other words, the UK knows that you can only be accepted as a world leading forum if you guarantee international recognition.

The paper discussing the government’s preferred dispute resolution mechanism strongly suggests that the UK government prefers the EEA model. This dispute resolution mechanism is the method which the UK and the EU would have to follow to resolve possible disputes about interpretation and enforcement of the law developed once there is a trade agreement between the EU and the UK.

The government paper itself considers different methods such as arbitration, mediation and others, but it is significant that the EEA model and the EFTA court are mentioned over and above the rest. So, the UK government is effectively rejecting the ECJ, only to accept the EFTA court (which ultimately follows the ECJ).

In conclusion, the Great Repeal Bill, with all its ambition and dramatic effect, has more elements of continuity than repeal. It has a paradoxical way of bringing back sovereignty, since it grants government substantial powers to deal with deficiencies – as the Bill calls to problems of compatibility between integrated EU law and UK law -, and a very unrealistic expectation of the way that UK courts will be able to operate without closely following developments of EU law.

Nonetheless, it may well be that the UK government is already thinking of its plan B, a plan which includes re-entering into the European Economic Area. Therefore, at the end of the day, the repeal bill may be overridden by a Great European Economic Area bill.

By Alfonso Valero, Principal Lecturer in Law at Nottingham Trent University.


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