The Bruges Group is pleased to republish this article by Barnabas Reynolds
Brussels' rules are prescriptive and controlling, and are holding back British growth
The Prime Minister must restore Britain's sovereignty over our laws
The Government is seeking the power to remove some of the vast swathes of EU-inherited law by the end of 2023 in its Retained EU Law Bill, leaving only that which it expressly preserves.
The bill also allows for preserved EU law to be modified or replaced, while the Financial Services and Markets Bill will permit similar adjustments to inherited regulation affecting the City.
However, without more bold action these bills risk delivering the opposite to what is intended: they could bake in EU law indefinitely. Once embedded, the inherited provisions could stay in place for decades.
The EU method is prescriptive and controlling, and economic evidence shows that it constitutes a drag on growth.
Our legal system is clear, operationally apolitical and much admired worldwide. The style of drafting and legal conceptualisation – which places reliance on the dispersed power of multiple individual judges to reach a judgment through case law precedent over many areas – gives rise to greater legal certainty than that achieved through EU law. Legal certainty is the lifeblood of our much-prized individual and commercial freedoms.
Although the Government appears willing to abandon some elements of EU-inherited law that are unnecessary or undesirable, the risk is that far too much will be left in place.
If we are to optimise our newly sovereign regime, each inherited EU provision needs careful consideration. The task of revision is subtle and complex, and will involve considerable intellectual effort.
It should therefore be a priority for the Government to take independent advice on which laws need to be preserved and how they should be redrafted, to match our "common law" method.
However, the great danger is that Whitehall departments, regulators and other bodies involved in managing the system whilst the UK was inside the EU will be reluctant, unwilling or unable to change direction and identify what needs to change.
Already the arguments against change are being marshalled. Some see restoring our legal approach as a political choice, rather than the inevitable constitutional consequence of leaving the EU.
They accept the need to re-examine a handful of EU policy decisions in key commercial areas, but not the need for an adjustment to the method by which the present body of inherited EU law has been constructed.
Others consider that only minor changes should be made, so that any steps taken are reversible. The motivation appears to be in case a future government wishes to negotiate a different EU trade relationship, which involves a demand that the UK readopts current EU law.
Such reasoning is ruinous. Sovereignty over our laws, and the ability to fashion them for our own approach and interests, is at the heart of Brexit.
A failure to appreciate this allowed the Theresa May administration to negotiate away sovereignty over laws in return for trade. A result is the mess of the Northern Ireland Protocol, which gives the EU legislative, judicial and executive authority over economic laws in Northern Ireland.
These arrangements are in breach of the Good Friday Agreement and render the Protocol internally contradictory, given that it is expressly premised on upholding that agreement.
Leaving EU-inherited law in place in a form that continues the EU's very different method of lawmaking and interpretation is incompatible with Brexit. Nor is this country's own legal system compatible with arrangements that involve continually updating inherited EU code. Furthermore, attempting to combine the two systems will lead to greater uncertainty than that which existed when we were inside the EU.
Our approaches are different. Unlike the continent, we do not make constant reference to written constitutions, legal code or constitutional treaties. Vague, controlling legal notions such as "proportionality" and "subsidiarity" in EU text are accounted for in clearly drafted UK statutory provisions, case law precedent, or not at all.
The continental approach to law leaves huge discretion to the state in its application; and notably, it appears to coincide with greater levels of systemic impropriety than we would hope to find here, as evidenced most recently in the case of the European Parliament's Qatari scandal.
Top-down, controlling thinking and its sloppier approach to legal certainty have already crept into our own system.
In financial and many professional services, significant reliance continues to be placed by our regulators on their present vague rules known as "Principles", which allow for too much regulator discretion after the event. Many areas, such as financial services and data protection are governed by millions of provisions of (frequently) ill-conceived, poorly drafted inherited EU code.
We have also caught the continental disease of regarding justice as principally involving assessing facts and considering whether they fall within particular legal provisions, however vaguely drafted. In doing so, we are eschewing legal reasoning and judgment, thus overlooking the nuanced predictability and consistency this method brings.
We place inordinate reliance upon lay investigations into potential wrongdoing, with the lay decision-maker merely advised by lawyers. This thereby reverses the role of judge and jury, and gives officials greater discretion than we would generally think desirable.
Even today, some institutions in our system are trying to adopt the EU's methods. The Prudential Regulation Authority is considering the introduction of new statements of "purpose" and "expectations" to accompany its rulemaking. This reflects a continued attempt to use the EU's "purposive" method of interpretation and will lead to inferior levels of legal certainty.
We now need to place law and our legal method back at the heart of our system. Restoring our approach to the law requires extensive work from imaginative lawyers supported by skilled common law drafting, which must start right away in order to be effective.
This must be seen as a necessary consequence of the Brexit vote, not simply as a policy presented and arising for consideration. The people who voted for or accepted Brexit deserve nothing less.
Barnabas Reynolds is a partner at Shearman & Sterling and the author of Restoring UK Law
This article was originally published in the Daily Telegraph.
