In the run up to the Brexit referendum, the debate largely concerned issues of politics (sovereignty, immigration, etc) and economics (common market membership, Eurozone stagnation). There was very little, if any, mainstream discussion about the legal implications of withdrawal. If only people cared enough to ask the lawyers…
The legal implications are potentially huge. Over the past 40 years, the domestic legal code in the UK has evolved in step with (and often under the instruction of) Europe. After Brexit, legislative and judicial functions within the UK will be discharged entirely without the encumbrance of EU jurisprudence. It is no understatement to suggest that, for better or for worse, Brexit will be the single most far-reaching event in British constitutional law since the seventeenth century.
How to deal with such a cornucopia of nuanced imponderables? How to navigate such a stormy slew of uncertainty? Theresa May, of course, has the answer which she announced at the Tory party conference this week: the Great Repeal Bill.
The Great Repeal Bill, if it becomes law, will end legal primacy of EU law overnight while incorporating existing EU law into the domestic code. Problem solved, right? If only it were that simple.
Not all EU law is in a form capable of incorporation at a stroke. EU law is enacted through a variety of instruments; some are binding in totality, others only as to the ends demanded; some bind all member states, others bind only a handful; some are binding horizontally as well as vertically, others only vertically. Anyone with even the most perfunctory knowledge of the EU legislative process will recognise that the Great Repeal Bill is far from the silver bullet May purports it to be.
The most easily domesticated legislative instruments of the EU are Regulations. After ratification at EU level, Regulations become binding in their entirety in all member states. The Great Repeal Bill might work if Regulations were the only legislative instrument used by the EU, however there are other forms: directives legally bind member states as to the ends stated, but leave the method of national transposition up to the individual member states. Directives are fluid and are shaped (often to things beyond recognition) by evolving jurisprudence emanating from the European Court of Justice. How the Great Repeal Bill will interact with Directives remains to be seen, as is the extent to which UK courts will continue to have regard for evolving ECJ case law.
Even more nebulous and therefore beyond the rather rigid scope of the Great Repeal Bill are decisions, recommendations and opinions emanating from the EU. To what extent will these (or even can these) be domesticated by the Bill?
The legislative mess that the Great Repeal Bill will create will have to be cleaned up by the lawyers through years (perhaps decades) of expensive and long-drawn out litigation. Great news if you are a lawyer working in one of the fields likely to be affected, but bad news if you are an employer trying to run a business; terrible news if you are an employee trying to maintain a household. The Great Repeal Bill is a one way ticket to decades of legal uncertainty.
There were be few areas of law greater affected by this uncertainty than Employment Law. Aspects of Employment Law such as TUPE, the Working Time regulations, and Sex Discrimination are rooted almost entirely in European Law. While the Great Repeal Bill promises to import existing protections into domestic law, without their European underpinning they will remain vulnerable to repeal by either this or future governments. Further, without the need to have ongoing regard to evolving European jurisprudence, workers’ rights in the UK will almost certainly fall behind those of the EU.