Brace for the Brexit law bonanza!

Posted on: July 11th, 2017

Over the next two years the ‘Great Repeal’ will become as common a phrase as ‘Brexit’ has been in the past two. However, the Great Repeal Bill is misleading as the Government’s key task will be enacting legislation,  not getting rid of it. Mark O’Halloran explains.

According to EU figures there are nearly 20,000 European laws in force in the UK, around 5,000 of which were implemented by our Government under section 2(1) of the European Communities Act. All of that law will have to be separately brought into UK legislation if the European Communities Act is repealed. That is easiest for the 5,000 laws already implemented, but this still leaves a vast number of often technical legislation to be duplicated, as well as the whole corpus of Court of Justice decisions and regulatory rulings by EU agencies.

The adoption of EU legislation is not going to be a smooth process. It will be complicated by an expectation that negotiations between the UK, the EU and its member states will not reach resolution until near the end of the two years, potentially leading to a mad rush to get laws adopted. Patent law is a prime example of an area that is going to be of shared concern for many areas of UK industry.

The Government still appears eager to move forward with both a unified European patent court and a unified European patent – and there is logic for that. British businesses will want the security of knowing that their patents are protected as widely as possible, without the hassle of having to prepare and file applications in multiple countries. Currently, it is far more expensive to protect designs through patents in Europe than in the US, and the new unified European court and a unified patent aim to address this. 

The price we may need to pay, however, is continued EU political influence through, perhaps, the involvement of the EU’s highest court. Despite Brexiteer assurances, we will not be able to have all our cake and eat every morsel of it. There is much uncertainty in how the extraordinary challenge of Brexit will be handled. Since the 1957 Treaty of Rome, only Algeria, Greenland and Saint Barthélemy have left the EU or its predecessor the EEC. No large member state has ever left the union and, despite the erratic phoney war now being played out in the press, much of the next few years will be governed by uncertainty as everyone tries to figure out what to do.

Do not expect all that much to change at first. The Government will be closely watched and scrutinised over the next two years and its remit will be simply to ensure that we have working legislation in place for us officially leaving. It is once this formal process is complete that the fireworks will go off.