Brexit: The first in the series of four articles examining the state of the law after Europe - Written by Becket Bedford

Mon, 11 Jul 2016

The European Communities Act 1972 provides 

2.— General implementation of Treaties.

(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision—

(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;

and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid.

3.— Decisions on, and proof of, Treaties and EU instruments etc.

(1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).

Lisbon Treaty

Article 50         

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period …

In the moments before Chilcot pushed the referendum result from the front pages, social media focused briefly on whether the courts may require Parliament to legislate before taking us out of the EU, supposing Parliament might yet choose to remain. 

Constitutional lawyers divide over the question whether the PM may, by decision, trigger Article 50 of the Lisbon Treaty and so trump the European Communities Act 1972.  

As a matter of law, the argument runs, only an Act of Parliament can reverse another Act of Parliament.  On the other hand, the counter argument runs if the body of law we call EU law ceases to apply on the expiry of 2 years, in accordance with article 50(3), then section 2(1) of the 1972 Act does not need to be repealed because there will be no more EU law arising under the Treaties to be given effect.  

In particular, it seems the expression ‘enforceable EU right’ will disappear from our legal lexicon.  Ministers will have no more recourse to enabling powers under the Act for the implementation of EU regulation and the decisions of the European court will lose their binding character.  Instead the UK Supreme Court will be arbiter of all our laws, which in truth it has never ceased to be.

In a series of articles on Brexit I explore what will the loss of enforceable EU rights mean? How might Ministers seek to eliminate non-tariff barriers in future bilateral trade agreements? and what will be the loss of the European Court?

By way of introduction to the series, it is well to note that the EU grew out of the single market for the reason that the elimination of trade barriers was not enough by itself to ensure even competition between member states.  

Take TUPE, as one example, if firms could transfer their businesses before going bust in one jurisdiction, taking with them all liability for their employees, but in another jurisdiction, liability for employees was transferred to new owners, in the former, business might enjoy a competitive advantage over business in the latter.  

By reducing the differences between the extent of employment protections across Europe, TUPE did a little bit for competition and single market access too.  

The same can also be said of the Framework Directive for equal treatment in employment and occupation.  Without the obligation at EU level to guarantee minimum employment and social protections, a Member State might wish to attract attention to the relative absence of health and safety regulation in their countries to draw business away from other member states. 

Imagine if you still can the egregious effect of a freedom to discriminate between men and women in pay.  Whereas equal pay between men and women was guaranteed after the war in Europe from 1950 by article 119 of the Treaty of Rome, the same right did not become law in the UK until the Equal Pay Act in 1970, doubtless inspired by the transformative affect that prospective membership of the EEC had on the UK of the time.

By contrast the Member States of the EU have always retained the freedom to set aggressive tax regimes in order to compete for international corporate business.  Some countries, notably Luxembourg and Ireland, used it more than others.  The UK has now signalled an intent to do so. 

Post-Brexit, the extent of employee and social protections too might be reduced for business in the UK so as to obtain a competitive advantage over businesses in the EU and the only power in the land to prevent this will be Parliament rather than the courts.  So in the next article I will examine the implications of the loss of enforceable EU rights.

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