Brexit and legislative policy-making: is the government ready to go it alone?

There will be a two-year window to unpick the UK statute book in the event of a Brexit, but there will be an immediate impact on our legislative policy-makers who will need to relearn how to operate independently from the EU legislative machinery.

Daniel Greenberg, Parliamentary Counsel, Berwin Leighton Paisner LLP

If the UK decides to leave the EU following the referendum to be held on 23 June 2016, the government will have the obvious and massive task of "unpicking" the whole of the UK statute book (including all the thousands of Acts and tens of thousands of statutory instruments in force) in order to review and remove those parts that directly or indirectly transpose EU legislation while preserving those parts that reflect domestic UK policy.

But behind the scenes, permanent secretaries and heads of civil service legal divisions (in the devolved governments as well as in Whitehall) are likely to be much more troubled in the run-up to the referendum by a question that will be more urgent, but kept out of public discourse, namely: what do we need to do to ensure sufficient independent policy-making capacity for legislation in areas where the EU has had more or less exclusive competence for the past few decades?

Redoing the statute book

In itself that is an awe-inspiringly large task: it dwarfs the massive exercise that was faced on entry to the European Economic Community (EEC) in 1973, both in terms of size but even more in terms of complexity. Adding new laws to implement EU law is nothing like as complicated as trying to extract from our statute book the law that was inspired by our membership of the EU.

In particular, civil servants will already be uncomfortably aware that not all EU Directives were implemented under section 2(2) of the European Communities Act 1972 (ECA 1972); many were implemented wholly or partly by Act or by subordinate legislation under domestic vires (and at one stage there was an intra-government directive that domestic vires should be used in preference to section 2(2) where available). In addition, the Explanatory Notes and other material do not always leave a clear record as to which provisions are required for an EU law purpose.

So it will not simply be an exercise of tracking down all section 2(2) instruments and revoking them: the entire statute book will have to be reviewed. And even within the list of section 2(2) instruments, simple revocation will not be possible without a careful review to consider whether the legislative void left by revocation would require to be filled, as many EU laws deal with matters (such as health and safety or consumer protection) which we would have had to invent for ourselves had they not existed as a requirement of EU law (see also Article, Brexit: a Parliamentary Counsel's view ( www.practicallaw.com/3-620-9935) ).

But although that task is more than daunting, the legal civil service will at least be able to reassure itself that it will have a reasonable amount of time for the job. There will be a two-year lead-in time to the formal exit process, although in reality the renegotiation of replacement third-party-status Treaties is generally expected to take much longer than that. And apart from the fact that exit will be a protracted process, it is likely that the legislative solution to enacting Brexit would involve a transitional "freeze" on section 2(2) instruments, allowing time for them to be reviewed and replaced systematically.

Relearning policy-making

However, redoing the statute book is one thing. Relearning how to formulate policies is quite another. For, lurking behind the concern about the "lack of sovereignty" that is at the heart of the substantive political debate over membership of the EU, is the stark fact that the administrative and legal civil servants of EU member states are currently relieved of much of the responsibility for policy-making in an enormously wide range of policy areas; and so the mechanisms and processes for proper policy and legislative development have fallen into partial disuse.

Added to which, whether as a result of pressure on resources or simply as a reflection of the increasing IKEA mentality of the public service, where quality of policy and law is sometimes no longer at a premium because "if it breaks we can easily get a new one", the detailed experience of legislative policy-making is no longer what it was before we joined the EEC. The time and level of analysis that were once routine are now made available only for a few projects seen as particularly sensitive.

Take financial services as an example. In the past few years, the EU has legislated at considerable length and with layers of technical depth and complexity on a number of areas of enormous importance to industry and consumers alike, including the Solvency II Directive (2009/138/EC), the Banking Recovery and Resolution Directive (2014/59/EU), the Capital Requirements Directives (2006/48/EC and 2006/49/EC), the Deposit Guarantee Schemes Directive (2014/49/EU), and the Alternative Investment Fund Managers Directive (2011/61/EU).

All of these were necessarily transposed at UK legislative level with presumably the focus being on expediency rather than the balance to be struck between achieving the underlying domestic policy objectives against the potentially undesirable unintended consequences. There was no point in thinking too much about any of this, because the simple tenet set by the ECA 1972 is: "EU law must be our law". So the questions were not worth asking, because the answers had already been set at a European level, albeit with the involvement of UK policy-makers.

This then begs the question of whether our political processes have been so etiolated by our long membership of the EU that we may be ill-equipped to make independent decisions on a range of substantive matters.

But unlike the "unpicking" process of EU-inspired UK legislation, there will be no long interval for preparation and rebuilding of policy and legislative capacity. Quite literally, from the very moment a decision is taken to leave the EU (if it is), the standard answer "EU law requires it" will immediately cease to be an adequate response to the Ministerial question "why are we doing this?", whether questioning a proposal for a lengthy Bill about consumer protection or for a minor statutory instrument in the field of pharmacology. Civil servants will suddenly have to answer from the perspective of substantive policy justification alone.

Yet at the same time, we will not be able to afford to be left behind in any legislative field by the EU, partly because of our industry-driven wish to demonstrate compatibility (that may be a requirement of third-party-status Treaties to a greater or lesser extent) and partly because of the political will not to be seen to be incapable of operating on our own as sophisticated a legislative development mechanism as that in Brussels.

So while Brussels will continue to churn out its legislation-mountain at the hands of its tens of thousands of bureaucrats, Whitehall, Edinburgh, Cardiff and Belfast will have the task of playing catch up, fast.

Food for thought

Of course, none of this is a reason for answering the referendum question in either way. But it is a reason why all of us, including consumers, businesses, professions and the third sector, should be asking ourselves some other questions of our own: since it was inevitable that the process of being bound to EU policy would be politically enervating, how long will it take for our policy-making and legislative muscles to learn how to walk again, what kind of physiotherapy will we need to undergo, and how much will it cost?

Daniel Greenberg, Parliamentary Counsel, Berwin Leighton Paisner LLP.

 
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