Adopt a principles-based approach to mammoth task
Magic circle giant Linklaters has co-authored a report on the mammoth task of bringing more than 12,000 EU regulations and 7,900 statutory instruments into domestic law.
This quantity of legislation, the unprecedented nature of what lies ahead and the limited timeframe set by Article 50 means “domestication could be an overwhelming task.”
But Linklaters’ Charles Clark, partner consultant, and Lucy Fergusson, partner, have some advice for David Davis MP and co. The duo — who penned the report on behalf of a City think tank, the International Regulatory Strategy Group — recommends approaching the daunting task with a principles-focused hat on.
The paper, ‘The Great Repeal Bill: Domesticating EU Law’, urges the government to adopt eight guiding principles when navigating this domestication process. These can be found on page eight of the report (embedded below), and include: “UK law rights and obligations to continue on exit day”; “exclusions from the scope of domestication will be made expressly”; and “government will provide guidance and consult.”
The 48-page report goes on to specify five overarching objectives, which its authors believe should govern domestication. Conveyed via funky infographic (screenshotted below), the report recommends a withdrawal process that embraces consistency, continuity, certainty, timeliness and simplicity (words not often associated with Brexit).
And what about the government’s current domestication strategy? Readers may remember that the Queen’s Speech included a namecheck for the (no longer ‘Great’) Repeal Bill, a piece of legislation intended to repeal the European Communities Act 1972 and convert European law into UK law when we withdraw from the EU.
Linklaters has some choice words on this, namely on the function of the bill itself. The global outfit states:
Given the scale of the task our industry faces in planning for and adapting to Brexit, we urge government not to use the Repeal Bill to make policy changes.
The authors also note, specifically in relation to the white paper that outlines Theresa May’s Repeal Bill plans, that:
[T]he government has recognised that cutting and pasting EU law into UK legislation would be impractical and undesirable. However, it appears to envisage the extensive use of delegated powers and has not ruled out a line-by-line approach to consequential amendments, which would also be a massive undertaking both in terms of time and cost. Lawmakers, businesses and legal practitioners would struggle to cope with such vast changes.
Clark and Fergusson are confident adopting their approach “would significantly reduce the volume of specific detailed legislation required for domestication”, something we assume the UK negotiating team would be thankful for. But they don’t believe their approach is infallible:
The scope and scale of the exercise is unprecedented. It is inevitable that some issues will slip through the net and throw up illogicalities, gaps or ambiguities. Despite best efforts, domestication carries risks of consequential errors and unintended consequences.
To combat this, the report recommends establishing a statutory body “to deal quickly with instances where the legislation does not work.” We certainly don’t envy the likely very busy people lumped with that task.
Read the report in full here:
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