EU law content will remain after Brexit, Faculty reports
EU law will remain a significant influence in Scotland after the UK leaves the European Union, the Faculty of Advocates has told a committee of MSPs.
In written evidence to the Scottish Parliament’s European & External Relations Committee on the implications of Brexit for Scots law, the Faculty said it was difficult to offer more than general thoughts when there was almost no clarity on when or how Brexit was to be realised, but much domestic law derived from Europe will have to remain in force. It was “inconceivable” that a complete inspection exercise could take place in the run-up to leaving the EU.
After more than 40 years in the EU, European law was "woven into the fabric of law in the UK", Faculty commented – though it had proved impossible during the referendum campaign to arrive at an uncontested estimate of what proportion of "UK" law derives from the EU.
“It appears to us to be inconceivable that it will be possible to review all that law, and determine what to keep and what to remove, in time for the last day of the UK’s membership of the EU,” said Gordon Jackson QC, Dean of Faculty, who personally signed the Faculty's submission.
“Some kind of transitional legislation, providing that European law in force at the date of Brexit remains in force until repealed or replaced, appears inevitable.”
That law included treaty provisions, and any legislation would have to take account of their direct effect coming to an end when Brexit takes place.
In relation to the many instances of domestic law having been made to implement obligations under a European directive, Mr Jackson stated: "Once Brexit has taken place, the extent to which courts should make reference to such directives and, especially, continuing case law of the European Court of Justice, as an aid to interpretation, will be less certain, especially as one moves further in time from the passing of the implementing legislation. It is likely to depend on context: some areas of law will be more susceptible to interpretation in line with supposedly shared values than others."
He added: “On any view, the status of the decisions of the CJEU will become only persuasive rather than binding."
In areas where domestic law represents the UK’s implementation of European directives but does not now specifically refer to those directives, "There is no reason why, following Brexit, such legislation should not remain in force unless and until the relevant Parliament considers that it should be repealed or amended.”
The Dean also noted that in areas which have been strongly influenced by the EU, such as equal opportunities and consumer rights, but which are reserved under the devolution arrangements, the legislative supremacy of Westminster is likely to assume greater importance to determining the content of Scots law.