Brexit – What’s The Legal Position?

11 Jul 2016

News that the UK is to leave the EU has completely enveloped London and the South East, but after the initial shock, it’s time to take a step back and actually look at what it all means in legal terms.

As legal experts here in the south east, we at Pindoria Solicitors have been every bit as captivated as the rest of the nation and feel it only right to briefly talk about the legal road map of departure.

As many will be aware, until Article 50 of the Treaty on the European Union is activated by the Prime Minister we are still very much a member of the EU.

In other words, whilst the country has made the decision to leave, the Government are yet to act upon it.

Once this has done, the next process is to work out what UK legislation will be needed to be repealed or amended in order for us to leave.

The most important piece of UK legislation that would need to be repealed is the European Communities Act 1972 (ECA), which is the act that provides for the supremacy of EU law. One this has gone, it would bring to an end the constitutional relationship that exists between EU and UK law.

Legal teams would then have to wade through masses of secondary legislation that has been passed to implement EU law, which would have to be considered by the government.

From a business perspective, however, even if we decided not to replicate any EU law, companies looking to trade in the EU would still be required to adhere to EU laws, such as EU competition rules.

Then there is the not so small issue of European Directives, which require implementation into UK law in order to have effect.

It means the Government will have to think about reviewing Acts of Parliament and statutory instruments with a view to deciding whether to keep or dispose of each piece of legislation.

Mountains of new legislation would need to be amended to take into account the new relationship with the EU.

One much asked questions -will UK courts still be bound by decisions of the Court of Justice of the European Union (CJUE), which is the final arbiter on questions of the interpretation of EU law.

As the referendum’s outcome has been to achieve political independence from the influence of EU institutions, it is highly unlikely the CJEU will continue to have a long term role of direct influence and CJEU decisions would cease to be binding here in England.

Having said that, given the scale of the job of cherry picking existing EU-influenced law, the UK courts are likely to continue to have regard to the CJEU rulings at least until a much more fulsome transition has taken place- in other words some years ahead.

From a legal perspective the divorce from the EU will be incredibly complex- every bit as much a headache as most commentators on the subject have predicted.

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