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Philip Costigan

Philip Costigan

Partner - Commercial Property

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Brexit – 5 possible legislative changes?

As both a lawyer and also someone who takes a close interest in the legal consequences of Brexit, I am sometimes asked by friends and clients what are the most likely changes in the law which the government will implement once we leave the EU.

In the absence of a crystal ball, this isn’t a particularly easy question to answer, particularly as there is no degree of certainty that a Brexit deal can be done, and that in itself means the likelihood of a General Election (and with it the potential of a change in government) cannot be ruled out.  Incidentally, I have tried to buy that crystal ball but alas, they all seem to have been snapped up by those trying to solve the Northern Irish border issue!

It is important to remember that current legislation which derives from the EU, comes from either EU Regulations (which are directly effective into UK law) or from EU Directives (which have to be implemented into UK law by UK Statutes passed in accordance with those Directives).

The UK’s domestic withdrawal legislation will in essence ratify all current legislation deriving from the EU as at the 29th of March 2019, so when we leave the EU nothing will immediately change, as all EU derived law will remain on the Statute Book.  The Government will then gradually change any laws which it doesn’t particularly like on a case by case basis, for which new UK legislation will be required.

So, without any degree of confidence at all, here are 5 possible areas where change is likely, assuming that there is no early change of government.

Given that much of our current employment law, protecting the position of employees in the work place, derives from either EU Regulations or Directives, it is probably a fair bet that some aspects of our employment protection rules will change in time post Brexit.

Another almost certain target will be the rights of free movement of workers from (and to) other EU countries, albeit that in the event of a “deal” being reached to secure an orderly departure from the EU on 29th March next year, rights of free movement will remain at least during the transition period until 31st December 2020.

The position with regard to agricultural subsidies which farmers currently receive through the EU as The Common Agricultural Policy will also almost certainly change in time, although the UK Government has guaranteed to retain an equivalent subsisting level of subsidy for a limited period of time following Brexit.

Critics of the EU’s Single Market consider that it creates too many seemingly petty rules which interfere in areas which shouldn’t be the EU’s concern, and denies Member States control of their own affairs.  For instance under an EU derived rule passed in 2013, any vacuum cleaners sold must meet energy efficiency standards.  It is quite possible in the fullness of time, we will see some of these very precise regulations become more relaxed.

Finally some members of this Government have been very critical about human rights legislation, and it is quite possible that the Human Rights Act will be amended in some shape or form.  Human rights legislation doesn’t actually derive from EU law, it derives from the UK’s membership of the European Convention on Human Rights to which we signed up shortly after the Second World War (long before we joined the Common Market), and quite often human rights legislation is mistakenly attributed to our membership of the European Union.  However, whatever the derivation, it is more than possible that some elements of human rights legislation will be on the government’s “hit list” after we leave the EU.

Amongst all the uncertainty, one absolute certainty is that we are living through a time of change, but exactly what that change will amount to is currently far from clear.  In the meantime, I hope the above suggestions are interesting, if only in due course to show wrong one can be!

We have set up a team at Band Hatton Button to assist with our business clients’ Brexit related issues, and for further information please contact any of Philip Costigan, Sean Byrne or Jonathan Wilby.