The Brexit negotiation process is going to require significant expertise and a consistent approach following the successful result of the referendum in June, when 17.4 million people voted to Leave the European Union. Operation Uncertainty has replaced Operation Fear as those who are unhappy with the referendum result seek to stress the difficulties of delivering this democratic decision. We can counter this by settling important questions concerning the process. For example one major factor going forward is continuity regarding the law.
The European Communities Act 1972 gave legal effect to European law. Since then we have incorporated the Acquis Communautaire into our legal system, which is the accumulated body of EU law and obligations from 1958 to the present day. It comprises all the EU's treaties and laws, directives, regulations, decisions, declarations, resolutions, international agreements and the judgements of the Court of Justice. This accumulated legislation now covers 35 policy areas and lists over 80,000 items. Many industries and everyday activities depend on European regulation as set out by the Acquis in order to function.
As an interim measure we must turn the entire Acquis into UK law to maintain certainty and continuity. In subsequent years we can begin to repeal, amend or retain EU law to suit our own circumstances. This does not need to be complicated and we can look to historical examples when countries or regions gained independence, to begin to understand how we may go about this fundamental task.
In the 18th century the former colonies of the now United States individually and formally adopted most of English common law as it had existed up until the time the colonies began independently adding to or amending it.
In the 20th century when Australia, India and New Zealand became fully independent, they all adopted inherited British law as national law.
One of the most pertinent and more recent examples would be the transfer of sovereignty over Hong Kong on 1st July 1997, when it retained British common law via a statute. The statute was clear that “the laws previously in force in Hong Kong…shall be maintained… and subject to any amendment by the legislature of the Hong Kong Special Administrative Region”. Sensibly, the region continued with the legal system they had and only then sought to amend it via their Legislative Council.
With a plethora of examples stretching back to the USA in the 18th century, to Australia, Hong Kong, India and New Zealand in the 20th century there is a clear precedent for simply nationalising established law as an interim measure for the sake of continuity and then going about repealing, retaining or modifying the law, tailored specifically to our needs and demands.