Transitioning into Brexit

The UK statute books are currently replete with secondary legislation (generally but not exclusively Regulations) enacted under s.2(2) of the European Communities Act 1972 to give effect to EU obligations, in particular Directives which require transposing legislation. In the planning and environment world the most well-known of these are the EIA Regulations and Habitats Regulations (of which multiple versions exist across the UK’s various jurisdictions) – but these are not even the tip of the iceberg.

Will all this secondary legislation come to an abrupt end two years after Article 50 is invoked? I think not. Some may recall that following Tony Blair’s announcement in a cabinet reshuffle in 2003 that he was to reform the office of Lord Chancellor, the endless references in primary and secondary legislation to that office meant that even the subsequently watered-down proposal to reform its role and transfer its functions took two years to complete, meaning that the Constitutional Reform Act did not reach the statute book until 2005. That task will seem trivial compared to the one which now lies ahead: identifying the whole range of laws that transpose EU obligations, deciding which ones to keep or re-enact as a matter of pure domestic law, which ones to tweak and which ones to abolish.

The solution, I would suggest, is that when the European Communities Act 1972 comes to be repealed, the repealing legislation should retain the vires for secondary legislation passed under 2(2), either indefinitely or at least for a 5 year ‘sunset’ period. That will allow each Government department and the devolved administrations time for mature consideration of the transposing laws that fall within their remit and to decide what to do with them and in what sequence. That would in turn allow for an orderly domesticisation of our legal regime.

If, as I think is inevitable, a significant amount of transposing legislation survives the UK’s departure from the EU (at least initially), a question that is bound to arise is the relevance of CJEU judgments on the interpretation of the EU laws on which the wording of this transposing legislation was originally based. Clearly following Brexit, CJEU judgments will not be binding. But that does not necessarily mean they will be completely irrelevant. The courts in Hong Kong, for example, have from time to time had regard to European jurisprudence when considering the interpretation of HK legislation despite being under no obligation to do so. Rather than risk a repeat of the ongoing (and seemingly never ending) debate about the extent to which the UK courts are bound to follow judgments of the European Court of Human Rights when considering claims under the Human Rights Act 1998, it would be welcome if the Brexit Act were to spell out as clearly as possible how CJEU jurisprudence should be treated going forward.