If We Leave

Francis FitzGibbon

If Britain votes to leave the EU it will take several years to disentangle what’s to be kept and what discarded from our EU-saturated legislation. The law of the European Union has left few areas of life in the UK wholly untouched even though the EU can only legislate in areas for which it derives what are known as ‘competences’ from the treaties member states have ratified. The EU alone can legislate on areas in which the treaties have conferred on it ‘exclusive competence’. The Lisbon Treaty defined under this rubric competition rules for the single market, customs unions, commercial policy, and monetary policy in states that adopted the euro: the core business of the EU. ‘Shared competences’ – the EU and member states can both regulate on these matters, but the EU takes precedence – include the regulation of the internal market, transport, energy, environment and defined areas of social policy. Civil protection, health, education and sport are classed as ‘supporting competences’, and do not require the harmonisation of laws by member states. In other words, a web of EU law is superimposed on the law of member states, with some strands reaching further than others. In areas where the EU makes regulations, they have ‘direct effect’ in UK law without the need for any domestic legislation. By contrast, directives (such as the Working Time Directive) have to be transposed into the law of member states by statute or statutory instrument, allowing countries to decide how to legislate in order to achieve a particular goal. EU law is part of the ‘acquis communautaire’, which is made up of all the EU’s treaties and laws, declarations and resolutions, international agreements and judgments of the Court of Justice. It also covers joint action by member states in the field of justice and security and under the Common Foreign and Security Policy. New members are required to adopt all of this.

The laws governing the internal single market are vital to the working of the European Union, which has always operated as a ‘common market’. Such laws include those governing workers’ rights, including the right to work anywhere within the EU – which appears to be central to the Brexiters’ enmity to the EU – as well as competition law, environmental protection, consumer law, health and safety, and aspects of criminal law. The Brexiters tend to ignore the fact that legislation in these areas isn’t imposed by the EU; these are areas of ‘shared competence’. The concepts of proportionality and subsidiarity are written into EU law: the former limits EU intervention to what is necessary to attain the objectives of the treaties all member states have signed and the latter provides that the EU may act only if an individual member state cannot otherwise achieve what it wants in areas outside the EU’s exclusive competence. The UK has a record of ‘gold plating’ EU legislation, by far exceeding its requirements, in areas as diverse as animal welfare, MOT tests and the insurance industry. There may be domestic policy reasons for doing it, but Brussels should not be held responsible.

As part of the Lisbon Treaty negotiations the UK got an opt-out from most of the EU’s Charter of Fundamental Rights. The charter reproduces the rights included in the European Convention on Human Rights, which isn’t an EU treaty, but was adopted by the Council of Europe, with additions including rights for workers, rights to housing, rights for old people, rights for children and a right to linguistic diversity. The opt-out stops the European Court of Justice in Luxembourg from ruling that UK laws and administrative actions are inconsistent with the charter in certain spheres, and the additional workers’ and social rights cannot be used in litigation in the UK unless they are specifically provided for in domestic law.

So while the EU has legal supremacy it is not the case that member countries are always bound to submit to its legislative will but rather that national courts have to ensure that their decisions are consistent with European law. Only the Court of Justice in Luxembourg can strike down a piece of EU legislation as invalid. In cases of conflict national courts interpret domestic legislation purposively – in other words, they take into account the intention of the EU legislation that the domestic law is supposed to implement – thus allowing for a degree of flexibility. As a last resort, national courts can declare local law to be incompatible with EU law. In some cases, they can seek clarification by referring questions of EU law to Luxembourg for a preliminary ruling.

This happened recently in a case brought against the British government by the Tory MP David Davis and Labour’s deputy leader, Tom Watson. They challenged the government’s blanket power to retain communications metadata, including emails, phone and internet activity, and the lawfulness of the police and other agencies being able to authorise their own access to them. The High Court ruled that the Act of Parliament that granted the power was unlawful because it breached European law on privacy, as stated in the Charter of Fundamental Rights. There was no rule restricting the use of stored data to the prevention and detection of serious offences, and no system of independent authorisation. The European Court had already struck down a directive on data retention as being incompatible with privacy rights, in a case brought against an Irish telecoms company. In the Davis and Watson case, the British government appealed against the High Court decision, and the Court of Appeal referred the matter to the Luxembourg Court. Judgment is pending. The irony of going to Luxembourg to demand freedom from interference by the British government cannot have been lost on Davis, a prominent Leaver. If he has his way, this means of redress for British citizens will be closed.

Article 50 of the Treaty on European Union (TEU) provides the mechanism for a member state to withdraw from the EU within a two-year period. It does not cover that state’s future relations with the EU. If the UK votes to leave, it will have a choice to make. One possibility is membership of the European Economic Area (EEA), which is made up of the EU member states plus Norway, Lichtenstein and Iceland: this gives access to the single market and other benefits at a price, with continuing application of EU regulations but no say in EU policy-making. Or there’s the Swiss model: membership of the European Free Trade Area, again with Norway, Lichtenstein and Iceland, but not membership of the EEA, with the Swiss instead favouring bilateral agreements with the EU – more than a hundred of them. Switzerland has access to the free market of goods but not services, makes a financial contribution, and has no seat at the table. If the desire is for the EU to have no real influence over UK law, then Brexit would mean negotiating a single bilateral trade agreement with the EU and either replication or abandonment of all the other bits of law that have come with membership. This appears to be the Leavers’ preferred option.

Exit negotiations, the remaking of agreements with the EU and other countries, and re-enacting or scrapping EU regulations will divert our shrunken civil service from its main duties for years. A House of Commons research paper in 2010 estimated that about 7 per cent of statutes and 14 per cent of statutory instruments enacted between 1997 and 2009 were ‘European’ in origin. Most of the regulations dealing with EU financial services are in the form of statutes. No one really knows how much primary and secondary legislation in this country represents EU law, or the acquis communautaire more generally. There must be thousands of legal instruments with their source in the EU. After 43 years of membership, UK law is so intertwined with the acquis that disentangling it will be a Herculean task. Huge amounts of parliamentary time will be needed to handle new primary legislation to re-enact or alter EU rules that require non-EU legal underpinning: for example, regulations for the pharmaceutical and telecommunications industries, and competition in general, have legal force here because of the direct effect of EU law rather than by UK statutes. If new versions do not harmonise with EU law, it will be harder to trade with the EU. The alternative is for ministers to seek Henry VIII powers, which would allow them to amend primary legislation without parliamentary scrutiny. That shortcut would sit badly with the Brexiters’ complaints about the undemocratic nature of the EU.

A major difficulty when a country withdraws from treaties is the concept of vested rights, which are acquired by individuals through a treaty and can survive even if their state withdraws from that treaty. This is the greyest of areas, but it is reasonable to think that the Luxembourg Court would, for example, reject attempts by a member state to expel UK citizens who have settled in that state if they became destitute. Whether UK businesses based in the EU or trading from the UK would continue to enjoy pre-Brexit rights as vested rights, indefinitely or at all, is a great unknown.

Many of the Leavers would claim to be tough on law and order. The Schengen Information System identifies EU nationals across the member states who are accused of crime and wanted in their home countries. The European Arrest Warrant makes it easy to extradite them. New bilateral arrangements would have to be made to replicate this warrant. Cross-border policing, currently funded and organised by EU bodies, would also have to be renegotiated. In addition, the UK will lose automatic access to the European Criminal Records Information System – which was designed by British specialists. Unless this too can be renegotiated, our courts and law enforcement will be deprived of information about the records of suspects and convicted criminals. These things are part of the hidden wiring of the criminal justice system. Why strip them out and start again? In civil law, the EU legislation that makes one member state’s court judgments enforceable across the EU would cease to apply. The provisions would again need to be renegotiated with the EU or with individual states.

The Leavers have been coy about what would be done to protect workers’ rights. EU legislation has shaped British law on discrimination, agency workers, working time, maternity and paternity leave, pensions and data protection. If we leave, Parliament will be free to remove any or all of these rights. If the go-it-alone version of Brexit prevails, the UK would be relieved of its obligation to admit workers from across the EU, but there is no guarantee that the EU would not reciprocate and obstruct British citizens from taking jobs in Europe.

EU law currently regulates standards for water and air pollution: unwelcome red tape to some, a guarantee of public health to others. The Environmental Impact Assessment Directive requires major developments to undergo environmental impact assessments, with public participation. Many of the rules on health and safety at work and elsewhere derive from EU law. If we leave, all this legislation can be altered and standards of protection, against injury at the workplace, for example, lowered.

It isn’t hard to see the entire process stretching out for years, accompanied by litigation at every step. If the substance of most of our EU-derived laws and regulations stays in place, will Brexit have been worth it for the sake of what is jettisoned? One of the Brexit supporters’ main complaints is the influence of the European Court of Human Rights over UK law. But Brexit would not mark the end of that. Signing up to the European Convention of Human Rights and the jurisdiction of the Strasbourg court is a necessary condition for membership of the EU, but not the other way round: the convention and the court are not under the EU’s control. The convention was drafted by the Council of Europe, whose members include non-EU states such as Russia, Ukraine and Turkey, and it is responsible for the Strasbourg court. The Conservatives obsessively link the Court of Human Rights and the EU, but they are mistaken and ignorant. Theresa May, the home secretary, calls for Britain to leave the convention while staying in the EU: it can’t sensibly be done.