Rishi Sunak must rip up EU laws immediately to deliver on Brexit’s promise

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We are grateful to our friends at The Bruges Group  for their permission to republish the following article

Rishi Sunak must rip up EU laws immediately to deliver on Brexit’s promise

By Barnabas Reynolds for The Bruges Group

The government’s Retained EU Law Bill and its Financial Services and Markets Bill which seek to remove some of the vast swathes of EU-inherited law risks delivering the opposite to what is intended unless further drastic action is taken, argues Barnabas Reynolds, partner in law at Shearman & Sterling in a re-published article for The Bruges Group.

Current legislation he says may well embed EU law into UK law rather than remove it and this is important because they are different in fundamental and important respects:

“The EU method is prescriptive and controlling, and economic evidence shows that it constitutes a drag on growth.

Our legal system is clear, operationally apolitical and much admired worldwide. The style of drafting and legal conceptualisation – which places reliance on the dispersed power of multiple individual judges to reach a judgment through case law precedent over many areas – gives rise to greater legal certainty than that achieved through EU law. Legal certainty is the lifeblood of our much-prized individual and commercial freedoms.”

Inevitably, opposition to any radical overhaul is already emerging:

“Already the arguments against change are being marshalled. Some see restoring our legal approach as a political choice, rather than the inevitable constitutional consequence of leaving the EU.

They accept the need to re-examine a handful of EU policy decisions in key commercial areas, but not the need for an adjustment to the method by which the present body of inherited EU law has been constructed.

Others consider that only minor changes should be made, so that any steps taken are reversible. The motivation appears to be in case a future government wishes to negotiate a different EU trade relationship, which involves a demand that the UK readopts current EU law.”

The current situation he argues is both politically and practically unsustainable:

“Leaving EU-inherited law in place in a form that continues the EU’s very different method of lawmaking and interpretation is incompatible with Brexit. Nor is this country’s own legal system compatible with arrangements that involve continually updating inherited EU code.

Furthermore, attempting to combine the two systems will lead to greater uncertainty than that which existed when we were inside the EU.”

The effects are already being felt across important sectors of the economy:

“In financial and many professional services, significant reliance continues to be placed by our regulators on their present vague rules known as “Principles”, which allow for too much regulator discretion after the event. Many areas, such as financial services and data protection are governed by millions of provisions of (frequently) ill-conceived, poorly drafted inherited EU code.”

The author’s recommendations are clear and unambiguous:

“We now need to place law and our legal method back at the heart of our system. Restoring our approach to the law requires extensive work from imaginative lawyers supported by skilled common law drafting, which must start right away in order to be effective.”

The full article can be found here.

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