Brexit-EU Law

Unless Article 50 is revoked and Brexit abandoned, here in the UK there is a new legal regime about to be added to the legal and regulatory burden carried by UK business. It is what we would term “Brexit-EU Law”, a sort of hybrid legal system, given birth to by the European Union (Withdrawal) Act 2018, which will in some shape or form, and timeline, still to be determined, create various different levels of UK law and EU law in a sort of ‘Brexitised’ mutation which meets the singular circumstances of the UK.

This is ironic, since one of the perceived attractions of Brexit is that the UK would be rid of what is considered by some to be the overbearing weight of EU law and regulation. This is seen partly as an issue of sovereignty (wresting control of our laws from the EU legislative institutions and the European Court of Justice and returning it to Parliament and the UK courts), but in part also a question of removing ‘red tape’ and burdensome regulation. If the concept of Brexit followed its own logic, its outcome would be a reduction in regulation, and certainly less complexity. Not so. The opposite, in fact.

As we move now into the ‘flexible extension’ period agreed between the Prime Minister and the EU on 11th April 2019, a period which theoretically might end any time between now and 31st October 2019, it remains impossible to predict the specifics. What we can be sure of is that even if the UK does end up leaving, and irrespective of what form that ultimately takes, EU law in the commercial and business sphere, as it has come down to us incrementally and inexorably over 45 years, is not about to disappear. This applies even in a complete no-deal exit with no transition period. The European Union (Withdrawal) Act 2018 recognises this in its concept of “retained EU law” which means, even in a no-deal Brexit, ‘conversion’ of EU law (as it stands at the point of exit) into UK law and the preservation of UK law that implements EU obligations.

The 2018 Act is of course a piece of UK law in itself, but with an added twist. It is considered likely, on the basis of UK case law, that because the 2018 Act has such a significant effect on the UK constitution, through its removal of the supremacy of EU law and its repeal of the European Communities Act 1972, it is likely that it will in future be recognised as a ‘constitutional statute’ which benefits from immunity to implied repeal and a certain degree of judicial protection. Therefore, the retention of EU law and EU-derived law becomes an embedded part of UK law. That is the minimum position, where there is no transition and no deal.

If there is a trade deal, then it will inevitably have to be anchored in EU business and trade laws. This would probably entail a bit more than the UK version of ‘retained EU law’ (the conversion model) but rather that EU law itself would, with certain exceptions, continue to be applicable to and in the UK at least in relation to those areas of business which have an involvement in trade with the EU – for example, in the chemicals and waste sectors. This would have in the UK the same legal effects as those which it produces in the EU and its member states, and be interpreted and applied in accordance with the same methods and principles as those applicable within the EU.

The fact is that the EU accounts for almost half of UK exports of goods and services. It is difficult to imagine exporters simply abandoning, or being able to abandon, that critical trade. In the real world away from Westminster, these things simply don’t happen overnight. Any meaningful trade with the EU is likely to find UK exporters having to continue to comply with EU product standards and other EU environmental and health and safety requirements. As such, they would still have to comply with significant elements of EU environmental law, including the REACH Regulation 2006, the Industrial Emissions Directive 2010, the Waste Framework Directives 2008 and 2018 (and various ‘daughter’ directives such as the Waste Electrical and Electronic Equipment Directive 2012 and the Packaging and Packaging Waste Directive 2015), the Waste Shipment Regulation 2006, the Water Framework Directive 2000, the Environmental Liability Directive 2004, the Eco-design Directive 2009. That is a fairly formidable collection, and by no means exhaustive.

Therefore, whatever way you cut it, there is a new legal regime to be overlaid onto UK businesses as a consequence of Brexit – “Brexit-EU Law”, a sort of moving feast which will need some mental agility to keep up with. The only thing we can be certain of is increased uncertainty and complexity, and in the end the survival in the UK legal system of the substance (if not the supremacy) of the most comprehensive body of environmental legislation in history – EU pollution, waste and industrial law. Therefore, ironically, if you want to navigate the legal implications of Brexit, you need a sound working knowledge of EU law as it now stands and as it continues to develop over the next decade.

As a lawyer who has been immersed for his entire career in the workings of the EU and the substance of EU environmental law, with three years’ in-depth advising to the European Commission, but always schooled and practising in UK law, Vincent Brown is well placed to advise on what will become a recurring theme for business: – how does Brexit-EU law affect our plans?