Brexit and the UK’s Retained EU Law ( Revocation and Reform) Act 2023
On 29th June 2023, the UK’s Retained EU Law ( Revocation and Reform ) Act 2023 ( “the Act”) became law. In the course of its pre- Act life as a Bill, it went through significant changes given its highly political nature and for some there must be a sense of relief that the exhausting legislative process has now been completed.
The most significant change is perhaps the substitution in section 1 ( and the related Schedule 1) of a specific list of retained EU laws to be repealed at the end of 2023 for a more generalised reference to the repeal of all retained EU laws ( subject to express exceptions). This clarity gives legal certainty but at the same time has the effect of narrowing the previously general embracing scope of the Bill/Act.
However, other more general sections of the Act in its final form raise concerns about whether these more generalised repealing provisions have the effect of leavings gaps in UK law with consequential legal uncertainty as to what legal principles apply instead. This is perhaps especially true of the following sections:-
- Section 2- This provides in sub-section (1) that “section 4 of the European Union ( Withdrawal) Act 2018 ( saving for rights , powers, liabilities etc under section 2(1) of the European Communities Act 1972) is repealed at the end of 2023”; and
- Section 4 – This provides, according to its headnote, for the “ Abolition of general principles of EU law”.
Sweeping provisions but, given the broad nature of the underlying legal laws or principles, it may remain unclear, pending clarification by the UK Courts in due course, as to what is the true scope of these sections. “Oh what a tangled web ,we weave…!”
Other provisions of particular note in the Act are:-
- Section 3 – “Abolition of supremacy of EU law”;
- Section 5 – The replacement of the phrase “Retained EU law” by “Assimilated law” in various guises;
- Section 6 – The role of the courts.
The Act is difficult to interpret because of the tortuous nature of the cross-referencing to previous enactments and for some may simply reinforce the sense of what a mess the Brexit enterprise has become. For others, the freedom from EU control brought about by Brexit will be worth any price.
A lot of work for lawyers!
Brexit and the UK’s Financial Services and Markets Act 2023 (“the Act”)
The Act was passed into law on 29th June 2023 and is likely to come into force in stages.
The accompanying press release from the UK’s HM Treasury claims that the Act “seizes the opportunities of Brexit by tailoring financial services regulation to fit UK markets. The Act bolsters the competitiveness of the UK as a global financial centre and delivers better outcomes for consumers and businesses.”
The press release says that the Act “contains new powers – available due to Brexit – that will set the path for reforms to Solvency II , which will unlock around £100 billion for productive investment and help cultivate innovation and grow the economy” and that “the Act also introduces new secondary objectives for the Financial Conduct Authority and the Prudential Regulation Authority – to facilitate the growth and international competitiveness of the UK economy. This will be backed up by changes to enhance the scrutiny and accountability of the regulators, including ensuring regular reporting and a greater focus on cost-benefit analyses”.
The press release states that the Act enables:
- the delivery of key Edinburgh Reforms; and
- the implementation of Lord Hill’s UK Listing Review which simplifies the UK prospectus regime;
and that the Act also:
- removes restrictions on wholesale markets;
- protects free access to cash in law and introduces crucial protections for victims of Authorised Push Payment scams;
- enables the regulation of cryptoassets to support their safe adoption in the UK; and
- establishes “sandboxes” that can facilitate the use of new technologies such as blockchain in financial markets.
Interesting times!
Brexit and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)
On 16th July 2023, the UK Government announced that it had signed the UK’s Accession Protocol to the CPTPP. The CPTPP is a free trade agreement covering various areas, including trade in goods and services ( including financial services), investment ( including provision for investor-state dispute settlement), digital trade, government procurement, competition policy, subsidy control, intellectual property ,labour and environmental standards, and state-to-state dispute settlement. It currently has 11 parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.
The UK Government now has 12 months to ratify the CPTPP and the UK’s accession to the CPTPP will enter into force either 60 days after existing CPTPP parties and the UK have ratified it or 60 days after the UK and six of the existing parties have ratified it, and fifteen months ( or more) have passed since the signature of the Protocol. In the latter case, the Protocol will enter into force between the UK and the Parties which have ratified.
The UK Government press release, announcing the UK’s signature of the Accession Protocol ,highlighted the following additional benefits of UK accession to the CPTPP:
- Boosting services;
- Increased flexibility ( particularly, in relation to “rules of origin” on trade in goods);
- Pro-investment;
- Cutting-edge ( particularly, in relation to digital trade);
- New Markets ( for example, in relation to Malaysia , with which the UK will have a free trade agreement for the first time through the CPTPP);and
- Cheaper consumer prices.
Interesting opportunities!
Brexit and the Rule of Law in Israel – A Warning for Other Jurisdictions
Israel is in turmoil as a result of the decision of the Netanyahu-led Israeli Government to push legislation through the Israeli Parliament limiting the right of the Israeli Supreme Court to challenge Israeli legislation in accordance with the Court’s “reasonableness standard”. Both sides to the argument claim that the other is committing an assault on fundamental democratic values. The problem is that the resulting strikes and withdrawal of services ( particularly amongst Israel’s citizen armed forces) is quite possibly putting the security of the State at risk.
In a Q & A, The Times in its edition of 26th July 2023 explained that “the “reasonableness standard” originated in English law in the late 19th century and is a tool used by courts in various countries to disqualify particularly egregious decisions by governments. Its critics in Israel claim that the Supreme Court judges have used the standard expansively, putting their sense of what is reasonable above that of the elected government. The law passed on Monday [24th July 2023] prevents the Supreme Court from using the standard to disqualify any decisions or appointments made by the government or individual ministers”.
In the UK, section 38(1) of the European Union ( Withdrawal Agreement) Act 2020 states expressly that “It is recognised that the Parliament of the United Kingdom is sovereign” – this provision being introduced to the UK Parliament by the then UK Government for enactment as a response to the issues raised by Brexit and to the perceived need to make it clear that the UK was no longer subject to EU jurisdiction. This was in line, arguably, with the historic view that the UK Courts had no power to overrule primary legislation enacted by the UK Parliament , their powers generally being confined to setting aside subordinate legislation on the ground that it was outside the scope of the primary legislation pursuant to which it was made.
The role of courts and the powers of judges in Western-style democracies to curb the powers of the executive and parliament in accordance with “separation of powers” doctrines is under scrutiny in many places and has come to a head in Israel with possibly alarming consequences for that country.
The core democratic principle that nobody is above the law may make little sense if the law can be skewed by lawmakers with little sense of traditional democratic values.
Perhaps the view of Martin Luther King Jr in his letter from Birmingham Jail will be scrutinised more carefully: “One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws”.
But then again, citing Juvenal, “Quis custodiet ipsos custodes?” (“ Who will guard the guards?”, which might also be translated as “Who will judge the judges?” )
Perhaps the current crisis in Israel will produce some answers.
