Now that there is some clarity about the kind of Brexit deal the UK Government has in mind, it is shocking how such a simple message can be so misread. Theresa May announced that Britain will go for a hard Brexit in 2019, prioritizing immigration control over access to the single market. However, in order to avoid the absolute mess that a hard Brexit would cause, Mrs. May has called for a simple and straight-forward Great Repeal Act that will incorporate all EU Law into British Law, allowing the Government to adjust the provisions of this “repatriated EU Law” in the way it considers appropriate. Britain will be an independent nation again after digesting sixteen tons of acquis communautaire in one single bite.
This might seem like a clever trick, especially if it comes wrapped under the name of The Great Repeal Act, but I wonder if this is, in any possible way, in the interest of an independent post-Brexit Britain, or coherent with the wishes of those who loudly voted to leave the EU.
First, there is a democratic concern: a Parliamentary Act will introduce the entirety of EU Law into British Law, but it will be up to Government to introduce the appropriate amendments. In fact, whatever role is finally assigned to Parliament will be secondary, because it lacks the means to implement such a titanic task. Only Government and the Whitehall machinery have the resources to undertake what is probably the most complex process of rule incorporation in the history of European law. We are not speaking of an acquis that needs adjusting into a new Member State. This is different: it is an acquis that is already a part of the domestic legal system, but that it must be completely reshaped in such a way that keeps British law in line with its European partners, but also different enough to prove that it is deciding on its own. Thousands of Directives and Regulations will be redrafted or tweaked here and there, with the purpose of proving that Britain is out of the block, but that it can also be inside if it suits its interests. This will all be done by Government, with a very secondary performance of Parliament. If this is “getting back control” for the people of Britain, it is hardly an improvement.
Once EU Law has become more law of the land than ever, the United Kingdom’s companies, consumers and authorities will carry on with their daily lives and, of course, they will keep relying on the same rules that they have been applying all these years. It is probable that the review process will take a long time, and even when it is done it will leave millions of EU rules untouched, now incorporated into British Law. For years and decades to come, Britain will be a country infested by EU rules in every corner, but in a rather nasty and dysfunctional way.
For example, Theresa May has promised not to touch worker’s rights as a result of Brexit. Therefore, it is to be expected that the acquired rights Directive will carry on having a strong influence on TUPE regulations. But let’s just imagine that the Court of Justice decides to change its mind about its interpretation of some of the provisions of the Directive, overruling past case-law that had been strongly criticized in some Member States, including Britain (for example, the case-law in the judgment of Alemo Herron). Once Member States have guidance about the scope of the overruling and have amended their implementing legislation, employers and workers will start taking note of the change. But of course, workers in post-Brexit Britain, who would be “liberated” of the past binding interpretation of the Court of Justice, will happen to be trapped in… The Great Repeal Act! Of course British courts could decide to follow the Court of Justice’s new case law, but they would be accused of becoming prisoners of the hated Luxembourg court. Or they could stay put and simply tell workers that they have been extricated from European rule, so tough luck. Workers would look at Theresa May remembering her words on 2 October 2016 and feel betrayed. But if British courts end up doing what they probably would (because, in fact, Luxembourg judgments happen to be quite reasonable in 99% of the cases), Brexiteers would be looking with fierce eyes at Theresa May, shouting treason.
It is even more terrifying to think about the thousands of amendments that EU law goes through every day. Post-Brexit Britain will have incorporated EU Law into domestic law in order to provide certainty to companies and investors for some time. However, if certainty is what Britain wants to offer, it will also have to keep up with events in Brussels and carry on adjusting and amending the “repatriated EU Law”, or otherwise investors and companies will start feeling that Post-Brexit Britain is just a mess of a country, that they were lied to, and decide that they are better off in Ireland or in the Netherlands instead. Some kind of automatic incorporation mechanism for future amendments would have to be introduced in British Law. The Great Repeal Act would then become a magnificent machine of incorporation of new EU rules coming from Brussels, amending the British rule-book almost every day.
It will be easy to sweep the acquis inside the British legal system in one go, but keeping it updated on a daily basis will be a challenge, if not a nightmare.
These are just two simple examples of the challenges in Theresa May’s Post-Brexit Britain, but it all gets even better when looking at the influence of Britain and Britain’s officials in the entire process. If the Court of Justice changes its mind or it simply decides to interpret EU Law (as incorporated into British Law) in whatever way it considers appropriate, it will do so in the absence of British Judges and Advocates General in Luxembourg, who have been extremely influential in the past, as long as they had a seat in the Court. But not anymore in Post-Brexit Britain.
The same would apply to the amendments of EU rules agreed by the Council, the European Parliament or the Commission. In its effort to keep stability and certainty during the transition, Britain will carry on swallowing EU Law in order to keep up with the rules it has incorporated domestically, but with no ability whatsoever to influence the content of such rules. No Commissioner, no Permanent Representative, no MEPs, nothing. The Great Repeal Act will facilitate the continuous arrival of EU rules amending pre-Brexit EU Law for the sake of certainty and stability. If the British people wanted back control… what kind of control is this?
Of course it will be said that this is just a temporary situation, only a technical patchwork to make things work while the UK and the EU find a reasonable agreement.
If hard Brexit is what Her Majesty’s Government wants, a hard Brexit it will get. The EU will sign off an Article 50 agreement letting Britain go, and any future bilateral agreements will be conditioned on Britain’s compliance with… EU rules! Just look at Switzerland, where EU Law is the law of the land as a result of bilateral agreements that condition their application to the compliance of a never-ending list of EU acts. Or take a glance at other nations such as San Marino or Monaco, that, in order to have a monetary agreement with the EU, have paid a heavy price in the shape of… compliance of EU rules. There is hardly any need to remind the reader of the cases of Norway or Iceland, where EU Law is a mammoth within the domestic legal system. Whatever our non-EU European partners do, no matter how big or small, they are surrounded, if not inundated, by EU Law.
Post-Brexit Britain will live with EU Law for many years to come, but with the disastrous outcome of losing the right to have a say in any of it. The Court of Justice will carry on having an enormous influence in the way EU Law is applied inside and outside the Union, and Britain will simply have to nod. The legislative and executive rule-making machinery will carry on in Brussels, and Britain will have to keep up with it. The Brexiteers will make sure that this is all done in a discreet and cleverly spinned way, far from the tabloids and from Eurosceptic hysteria. Having left Europe, British nationalism will find another punching-bag to strike and carry on with its business. But in the meantime, EU Law will be present, from north to south and east to west.
And if somebody complains, the heroes of Brexit will say that Britain is not being forced to do any of this. Britain is deciding to enforce judgments of the Court of Justice or adjust to EU rules on its own right and as an independent nation, because it has taken back control and it has made a huge success of it.
So on Brexit day the United Kingdom will get back control, only to lose it, in the worst possible way, as every day goes by. Quite an accomplishment indeed.