The Post-Brexit Life of Law
After the UK left the European Union there was a big deal made around the idea of taking back control of our justice system. No longer, the thinking went, would we be bullied by European bureaucrats into adopting a standardised system for everything from bendy bananas to strict financial regulations. Britain would be free of these shackles and a new era would dawn.
Of course not all of this could happen overnight. If you asked any Brexiteer which precise bit of EU law they did not like you would struggle to come up with an answer. Furthermore, given that the UK had been a part of the EU for more than four decades the two systems were bound to have become greatly intertwined during that period.
The solution to this problem was a fine bit of legal finesse. The National Archives would take a ‘snapshot’ of EU law on the date that we left and after that date it was up to lawmakers to chop and change this ‘retained’ version as they saw fit.1 This had the twin advantages of not pushing the UK off a legal cliff on exit day while also ensuring that politicians had the ability to pave a new way for Britain.
Thus far those efforts have been pretty modest (changing references to ‘member states’ to ‘the UK’ etc.) but that could change in the near future as the current government looks to set out its own vision for the legal landscape of this country.
Unfortunately this is not necessarily about doing things better but is instead the latest war front in an ideological conflict. Items of legislation like the Brexit Freedoms Bill are more about crossing the Rubicon and applying a scorched earth policy to EU law than having a serious attempt to engage with some of the legitimate drawbacks of that legal framework. Proving your bona fides when it comes to Brexit could be the defining feature of leadership contests in the Conservative party for years to come.
Meanwhile this is also unhealthy for democracy. The proposal is that much of this legislation, that affects so many areas of daily life, could be changed by way of secondary legislation. However these instruments are signed off by ministers and then never earn the level of scrutiny that they probably deserve from MPs.
If, as planned, retained EU legislation loses its supremacy and further changes are made to the way that law derived from the EU is handled in the courts, the irony is that the UK’s weird amalgam of laws and judicial decisions could become significantly more baffling than the regime it fought so hard to leave.
This week the podcast returns to the Troubles in Northern Ireland and what it takes for investigations into historical deaths to be re-opened. While this raises human rights questions it is also interesting in terms of thinking about how restorative justice ought to work.
Episode link: http://uklawweekly.com/2021-uksc-55/
Make a difference today,
Marcus
Full disclosure: I was a part of this project during my time in the civil service.