COLUMN: Sheffield law firm director examines implications of a Brexit
John Baddeley, director at Sheffield-based Wake Smith solicitors, looks into the legal implications of a Brexit
There are many legal implications in the event of the UK leaving the European Union following a referendum in June, and they are likely to be treated as consequential rather than forming any significant part of the debate on either side.
The winning argument is much more likely to be driven by trade, governance, sovereignty and border control.
However, it is worth looking at some of the legal implications ahead of the vote.
As the case for remaining within the EU would have little or no bearing on the UK’s current legal framework and legislative procedures, we need to look at the exit scenario to see where change may occur.
From the lawyers’ perspective, much as any other industry which trades with mainland Europe – the preservation of the UK’s ability to trade within the single market is a key consideration and one that has far reaching consequences if it should close to this country.
Solicitors too can take advantage of the ability to practice cross-border within the EU and many do.
However, much of the speculation around possible changes to the single market are simply that, speculation.
It is unlikely that the EU would become hostile to UK trade simply because of an exit as trade with Great Britain goes both ways and is highly valuable to the EU.
Countries such as Norway, Iceland and Switzerland have set a precedent as countries which can trade within the single market while remaining outside of the EU and in the event of an exit, the UK should seek to preserve a similar status.
Similarly, non-EU countries have shown that they can adopt many nuances of European law as the basis for development of their own legal frameworks.
Would the UK make steps towards a complete overhaul of its legal system simply because it has the opportunity to do so? Equally, would it benefit the UK to overturn specific EU directives which have undisputedly improved the UK for its inhabitants and employees? The answer is doubtful and those proactively seeking a split from Europe would still do well to maintain many of those laws.
What is more concerning and deserving of exploration is whether the UK’s status as a trading partner to overseas businesses is damaged by an EU exit.
The UK holds significant influence within the EU, not least of all on matters to do with legislation, which affects member countries, and this status is highly regarded globally.
The UK’s legal framework would of course be altered to some extent by a Brexit and the correct mechanisms for an exit, which take full account of those laws, is going to be crucial if the populace does vote to leave Europe.
Many EU laws, such as those brought into effect via the European Communities Act 1972 - the statute enacted to incorporate EU law, are classed as secondary legislation. Laws incorporated under the act might simply be rendered redundant if the act was repealed following an exit and the state would need to create new legislation if required to replace those laws.
Other Acts of Parliament, such as the Equality Act 2010, which protects people from discrimination in the workplace and in wider society, will remain in place as primary forms of UK generated legislation.
The potential scope of this legislative shift is vast.
Whether any of these changes to the UK’s legal model were to be made all at once or on a case-by-case basis over time, will be one of the logistical considerations which dictates whether the withdrawal of the UK from Europe would be harmful or manageable.
This also brings into question the validity of legal decisions passed by the European Court of Justice and whether the UK could, or should, continue to uphold those decisions.
The likely scenario and the path of least resistance is that the UK would continue to uphold those decisions and may operate its own legal framework based on those rulings.
The UK might therefore continue to be influenced, though no longer bound, by European Court of Justice rulings in the evolution of its own laws.
One aspect worth looking at is the EU approach towards UK Common Law as the basis for commercial contracts. There is currently a proposed EU Contract Law, which would undermine the influence of UK common law in disputes between legal systems. The advent of EU Contract Law may become a reality regardless of what the UK chooses to do, but if the UK leaves the EU, this is an area where we will almost certainly see a reduction in our legal influence on the mainland.
We cannot of course ignore the possibilities that many EU sceptics see in the UK’s links with countries which are not part of the EU and which have the potential for future trade. India for example is a developing economy and much of its infrastructure and legal framework is based on the UK model. This offers much by way of trade alignment and enhanced relations.
They will also argue that the possibility exists to grow such overseas trade without the UK having to follow legislation passed down from Brussels, therefore creating greater levels of freedom for trade and the management of our own law across all areas.
Exiting the EU would undoubtedly have an effect on many facets of our legal system and to try and summarise those potential effects further would be guesswork. The economic cases and the potential impact of a Brexit on the UK’s legal framework are not sufficiently convincing arguments on either side of the debate to secure an outcome.
However, the UK’s legal profession must be prepared and ready to help each individual or business to interpret those changes as and when it becomes necessary to do so.