Chaos Theory: Internal and External Aspects of Brexit
The House of Lords Constitution Committee’s Legislative Process Inquiry recently held a fascinating evidence session on Brexit, with Professors John Bell, Paul Craig and Alison Young. Anyone interested in the mechanics of Britain’s exit from the EU would be well advised to watch. Most of the discussion focused on the proposed “Great Repeal Bill”, which will ensure that the existing corpus of EU law continues to apply in domestic law post-Brexit, subject to modification by subsequent Acts of Parliament and, presumably, delegated legislation.
There was an interesting exchange towards the end between Lord Pannick, Professor Craig and Professor Bell on the subject of the consequences of a so-called “Hard Brexit”, in which Britain crashes out of the EU and into the safety net (such as it is) of World Trade Organization rules. Lord Pannick queried, in particular, whether there would be “chaos” in such a situation, putting it to the witnesses that the passage of the “Great Repeal Bill” would avoid chaos.
In thinking about Lord Pannick’s query, it might be helpful to distinguish between the internal and external aspects of Brexit.
Internally, it is true that the passage of the “Great Repeal Bill” will mean that things go on as before. The same law will apply the day after Brexit as the day before. There will be some uncertainty, of course. For instance, as my tort law students and I discovered a few weeks ago, the Consumer Protection Act 1987 is designed to implement the EU Directive on products liability. English courts have interpreted the Act in light of the Directive and, of course, the Court of Justice of the European Union’s guidance — indeed, they are obliged to do so by s. 1(1) of the Act and the precepts of EU law. Section 4(1)(e) of the Act, which provides a defence, has been given a narrow interpretation by the CJEU. Would the English courts be obliged to maintain that interpretation after Brexit or would they be entitled to depart from it? The answer is not clear. Similar questions will arise in numerous areas of regulation: Thomas Horsley has provided a useful overview. Perhaps the “Great Repeal Bill” will answer them. But perhaps not and there is no doubt that there will be commercial enterprises with strong incentives to test the limits of the 1987 Act and other pieces of legislation. Nonetheless, while there is much potential for uncertainty, there is little risk of outright chaos. Life will go on.
Externally, matters are much trickier. Here, life might not necessarily go on. In an instructive series of posts, Dr Richard North has noted that various sectors of the British economy depend for their ability to trade with the EU on their legal status in other countries (e.g. timber, pharmaceuticals, explosives and lifts, a list to which one might add nuclear energy, where in the absence of an agreement, which might well require the unanimous consent of Euratom’s members, the British nuclear industry would effectively be cut adrift). Put bluntly, in the Hard Brexit scenario, the United Kingdom will become a third country in the eyes of the EU, such that products exported from Britain will be subject to a regime of checks designed to ensure customs and regulatory compliance.
Sir Ivan Rogers explained this recently to the House of Commons Brexit Select Committee (as reported by the Guardian):
If you had an abrupt cliff edge with real world consequences, you’ve seen what Mark Carney [governor of the Bank of England] has said about the financial stability risks to the eurozone of an abrupt cliff edge. There are other consequences in other sectors which would make it an insane thing to do. All I was pointing out was that this is a very legalistic body that we are dealing with and they will say you have transformed yourselves overnight from having been a member of this body to a third country outside the body and in the absence of a new legal agreement everything falls away. We all know that that’s nuts in the real world, because why would you want to stop UK planes flying into European airports on day [one]. We know that this is insanity, but that doesn’t mean – we know that stopping carcasses and consignments and saying ‘your slaughterhouses are no longer approved’, we may know that that is a nonsense in the real world. Sadly, that does not stop it necessarily happening.
There is nothing that the “Great Repeal Bill” can do about that. It is all very well (and correct) to plead that the “Great Repeal Bill” will ensure that Britain has full regulatory convergence with the EU after Brexit. But where foreign laws that allow import of goods from or export are premised on Britain’s EU membership, these laws will also have to be amended to take account of Brexit. By definition, however, a Hard Brexit is one in which there will be no such amendments. A Hard Brexit would be chaotic and there would be nothing Parliament or the UK government could do about it.
This content has been updated on March 2, 2017 at 07:46.