Could Brexit change the shape of the British legal system?

Article 50 was triggered on 29th March 2017, giving the UK until 29th March 2019 to officially exit the European Union, subject to unanimous agreement of all 27 EU member states if they wish to extend this process. Theresa May has vowed to take Britain out of the EU and its Single Market. Leaving the EU will have substantial implications for the British legal system, not least because large swathes of legislation in the UK derive from the EU and many laws are currently governed by EU institutions. So what are the transition measures?

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The Great Repeal Bill

In order to prevent a sudden overnight disruption to many of the foundations of the existing legal structure – which could potentially cause chaos for business and confusion for individuals – the Government is introducing a Great Repeal Bill. This will essentially transpose all of the existing EU legislation into UK law, and it is comprised of three key parts:

  • Repeal of the European Communities Act 1972 – this will legally remove the UK from the EU and bring to an end to the jurisdiction of EU laws in the UK;
  • The entire statute book of EU law will be converted and subsumed into UK law – according to a government white paper this involves over 12,000 EU regulations; and
  • Powers will be given to government ministers to make secondary legislation, to enable “corrections to be made to the laws that would otherwise no longer operate appropriately” post-Brexit.

The Great Repeal Bill was formally introduced in the Queen’s Speech in June 2017 and was published the following month as the European Union (Withdrawal) Bill.

What happens to European case law?

Although EU legislation is being transposed into UK law, the status of decades worth of case law – in the form of decisions of the European Court of Justice (ECJ) and the wider Court of Justice of the European Union (CJEU) – is less clear. The white paper proposes that, in the case of existing legislation, “historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court” – but the Supreme Court will be free to overrule these decisions “when it appears right to do so”. However, decisions of the CJEU will have no role in the interpretation of new laws and domestic courts will not be required to consider EU law in this regard.

How will Brexit affect the legal sector?

Business advice

Many commentators have noted that the uncertainties created by Brexit will generate business for law firms, as companies seek advice on understanding and dealing with the implications upon their particular sector. There is no doubt that, as Brexit talks continue and the withdrawal date nears, more and more businesses will be grappling with the legal practicalities and turning to lawyers to explain the changes. Indeed, many firms have already created Brexit sections on their websites, dealing with the potential impact on particular sector areas.

European offices and clients

Apart from advising their clients, many firms will need to ascertain how they may themselves be affected by Brexit. This is particularly the case for any firms with European offices or clients. For example, if they transfer data between the EU and the UK, European data laws - such as the forthcoming GDPR - will still need to be complied with.

Will GDPR be affected by Brexit?

The General Data Protection Regulation (GDPR) will make significant changes to European data protection law, tightening up existing regulations and extending obligations from data controllers to data processors. It is set to come into force on 25th May 2018. Since Brexit is unlikely to take effect until at least 29th March 2019, this means that the GDPR will apply to the UK for a minimum of 10 months.

Even post-Brexit, UK businesses which market their products and services to citizens of EU countries will continue to need to abide by the principles of the GDPR. Even if they are only dealing with EU businesses, as long as they process any personal data of individuals who belong to EU member states, they will still need to meet the regulation's data protection requirements.

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