Ever since it joined the European Union, unlike Belgium with a monist system, UK having a dualist system was required, besides being a signatory to a Treaty, to ratify and incorporate the provisions into its national law by further legislation.
UK passed the European Communities Act 1972 and consequently all existing EC laws were automatically incorporated into British law and all future legislative provisions of the Community have become law and are recognized as enforceable.
However, UK has always experienced constitutional problems with the supremacy of EU law over that of UK (Costa v Enel). Most of UK laws enacted between 1993 and 2014 are influenced by the EU. So far, according to Mark Elliot a law professor at the University of Cambridge, immediate changes are unlikely to take place. EU will continue to be the biggest trading partner of UK and so, many EU rules will continue to apply. It depends on which option Brexit will take: Norway or Switzerland option?
The parallel running of EU and UK laws for a decade or more would necessitate continued understanding of EU law and how it has interacted with UK law. It has taken 40 years to compile the complex statutes book that is now available for the legal profession. It may now take decades to dismantle it. Cases like Factortame, Thorburn and Jackson show how British Parliament has sacrificed its sovereignty by implementing the European Community Act (ECA) 1972.
The supremacy of EU law on UK law has always been a thorn in the flesh of British Parliament: it had its parliamentary sovereignty sacrificed at the expense of primacy of EU law. Brexit would raise some difficult legal questions across the board. There is a mounting feeling of uncertainty. It has raised more questions than answers. For Britain it is not going to a simple divorce. It will no longer be able to assert the same influence on EU policy. In some quarters in the aftermath of the referendum the Brexit saga has been twisted into regrexit and remorse has set in.
The legal profession will be the hardest hit. Earlier it has allowed British firms to ‘export’ English law abroad. With free movement of goods and services many British legal firms have established offices in Paris, Brussels and Amsterdam and later in Frankfurt, Madrid and elsewhere in Europe. It has helped law-based firms to export English law, efficiently enforced by the English Courts, to other centres like Hong Kong, Singapore and Middle East. Now Brexit would remove those prestigious establishment rights which have been so beneficial to UK lawyers. Britain has offered financial services amounting to 3.1 billion pounds sterling.
Given the “legal and commercial chaos’’ which would result in the repeal of S2 (2) ECA 1972 it is improbable any future Brexit legislation would include a clause guaranteeing another clause already adopted under S2 (2) ECA. Mutual recognition of qualifications for architects, doctors, dentists and so on will be scrutinised afresh: whether UK or EU member states’ qualifications will be still mutually recognized is another question to consider. Moreover British businesses would lose the ability to effectively challenge protectionist legislation.
Art 50 must be triggered for Brexit to take place and eventually it will repeal ECA 1972. Instead it can envisage three-stage process: informal negotiation, formal negotiation and implementation of new arrangements. First option: the legal route will entail a basic two-year timetable. Second option: formal negotiation is to change the legal situation. Those who assert that as the only possible path of Brexit are mistaken about the history of EU. It has consistently concocted legal mechanisms to remedy political issues.
Third option: repeal section 2 of ECA 1972 which enshrines the supremacy of EU law which is identified by vote leave as ‘the heart of the problem with our EU membership.’ A tight timetable to Brexit comprising the three stages will be elaborated. UK will no doubt negotiate a new treaty with EU and end the legal supremacy of EU law and the European Court before the 2020 election. Theresa May has succinctly said: ‘Brexit is Brexit. We shall make it a success’. But Angela Merkel has thrown the gauntlet: Britain will have to bear the consequences. No question of enjoying the privileges of Free Single Market. It has to bear the brunt.
* Published in print edition on 22 July 2016