Easing the Uncertainty of Brexit: UK Attorney General envisions wholesale shift of EU regulation to UK

Friday, December 23, 2016 - 11:05

Introduction: The United Kingdom’s exit from the European Union – so-called Brexit – has broad implications for commerce, law enforcement, the practice of law and the rights of individuals. Following arguments last month before the UK Supreme Court on the mechanics of withdrawal under Article 50 of the Treaty on European Union – the outcome of which are unknown as of publication – Jeremy Wright QC, Attorney General of the United Kingdom, spoke to MCC about the uncertainty, logistics and anticipated impacts surrounding Brexit. His responses have been edited for length and style. 

MCC: Tell us about the post-Brexit Supreme Court hearing on the invocation of Article 50 to exit the EU, the potential impact of the court's ruling, and what legal steps, if any, will be taken next.

Wright: The case has been brought by a number of individuals. Fellow governments have responded to it. We've already argued this case in the High Court in London. Unfortunately for the government, we weren't successful there so we have appealed to the Supreme Court, which is the final court of appeal in a case like this. What this case boils down to is the decision about whether or not Parliament should have another opportunity to decide whether Article 50 of the Treaty on European Union should be triggered by the British government or whether the British government can take that decision without any further legislative decision.

Article 50 lays out the way in which a country that wants to leave the European Union would do that. It sets out a mechanism whereby over a period of time a country would negotiate its way out of the EU if it has a mind to leave. It doesn't start, of course, until the government of that country officially notifies the European Council that it intends to leave. That notification is what's being argued about. Can it be done by the government without having to go back to Parliament and ask permission, or does Parliament need to have a specific legislative process to give consent for that to happen? That was the argument being discussed before the Supreme Court in December.

The claimants in the case said that if rights are going to be affected by this decision to trigger Article 50, and one day they would be, because by leaving the EU and triggering the process inevitably one day you leave, then that can't be done without Parliament's specific consent. The government argued that if you are at Parliament and you want to restrict the executive’s power to do things like this, you have every opportunity and power to do so. There were multiple opportunities for Parliament to restrict the executive's power in this regard, and none of them were taken. We take that to mean, and we think the common sense interpretation of that must be, that Parliament considered whether it wanted to restrict the executive's power and decided not to. On that basis, the executive retains that power. In the end, of course, the executive will be using that power to do exactly what the British public has said they want done because in June we had a referendum in the United Kingdom. We don't often do that, but we did it on this occasion. Most of the British population turned out and voted, and the majority of those who did vote decided they wanted to leave the European Union.

This isn't an executive power being used for something that no one expected. We stayed consistent with the expectation, not just of the British public in general, but also of Parliament, that the executive would use that power to do this. That's all this case is about. The arguments were completed last week, and now we wait and see what the Supreme Court's judgment will be.

MCC: So recognizing that much remains to be determined, where do you anticipate Brexit will have the most significant impact in areas of the law of interest to corporate counsel. More specifically, how do you see this playing out in areas such as data protection, fraud, employment and other areas of concern to business?

Wright: There are two areas I'd highlight. One is the understandable concern about the opportunity for personnel to practice in different parts of the European Union and the access they'll have to legal markets throughout the EU. For that, of course, there'll be a negotiation. We will discuss with our EU partners how we might want to do that in the future. I absolutely understand the concern about the uncertainty there is now, and we will try and resolve that uncertainty as soon as we can. Much of it is subject to negotiation, and that's why it will be uncertain.

One of the other things you mentioned is also very important and that's data protection and the movement of data throughout the EU and, I would argue, even more broadly than that and throughout the world. How we manage the movement of data, what safeguards we think are important, how you balance privacy with the access that law enforcement and security services need to have in order to keep us safe are issues much more broad than the discussion with the United Kingdom and the European Union. They are genuinely global challenges, and we will have to discuss them at a global level as well as a European level. Data depends on a great many of the things that will form the subject of this negotiation. Again, I can't predict exactly where the negotiations will end up, but we are very conscious of the need to make sure that the movement of data features largely in the points we're arguing through.

MCC: The chairs of the Brexit working group and the Bar each said that this is the most complicated and perilous legal situation imaginable. Much of the Bar has pledged to make all possible resources available to the government to minimize the negative impact of Brexit on the British people. "EU law currently impact nearly all areas of life," Hugh Mercer, the working group chair, said. "We need a plan to make sure that the people do not suffer from uncertainty and ultimately end up worse off." How is your office working with various Bar groups that are eager to assist?

Wright: Certainly, we welcome the interest from lawyers inside and outside government in assisting in this process. I think there's a limit to what I can say about what the outcome of negotiations will be. Nobody knows what that will be. But I think we want to offer what reassurance we can. We want to smooth the exit of the UK from the EU as much as we can.

For that reason, one thing that we will do in advance of the point at which the UK leaves the European Union is transfer as much as possible of EU law and regulation into domestic law. What that means is for those who are making use now of regulatory structures and systems that have their origin in the EU, they shouldn't notice very much difference on the day after our leaving compared to the day before our leaving. That's designed to make sure that there isn't a cliff edge here and that there isn't the uncertainty you described. We want people to be confident that the regulatory regimes they’ve come to understand and make use of will in large part continue.

There are going to be other areas, which we've discussed already, that will be subject to negotiation and, therefore, we know will be subject to uncertainty. But where we can remove that uncertainty, we will seek to do so. For those very practical reasons, we're going to transfer a large amount of what are currently EU rules and regulations into domestic law. It will then, of course, be a matter for Parliament, and for government over a much longer period of time, to decide what they want to keep, what they want to amend, what they want to get rid of altogether. That shouldn't be something that happens, and frankly it can't be something that happens, on the day after leaving the EU. I think there'll be some reassurance we can offer with a whole range of legal and regulatory concerns simply by doing it in that way.

MCC: In any situation this complex, there are unintended consequences, positive and negative. Is there a major positive and a major negative impact that you believe is not getting the attention it deserves?

Wright: I don't know about whether there's anything that's not getting the attention it deserves. Everybody has different priorities and different things they're worried about in all of this. This will be a very wide-ranging and multi-faceted negotiation. Lots of things will have to be discussed. Within the job that I do, I obviously have an interest in legal services more generally. I have an interest even more broadly than that in the economic well being of the UK and the EU, and it's an important point to make that no part of this negotiation from the UK's point of view is designed to damage the European Union. We've made a decision to leave the European Union, but we've no wish to see it decline. We want to see the European Union thrive, and we want it to be an able and willing partner, not just in economic terms, but in terms of security as well, and in law enforcement.

Another part of my job as Attorney General is to superintend the prosecutors in the United Kingdom – the Crown Prosecution Service and the Serious Fraud Office. For them, there are important considerations around the mechanisms they currently use within the European Union to exchange evidence, to bring back suspects into the UK, and, of course, to repatriate European nationals to their own countries to face prosecutions. So arrest warrants, mutual legal assistance arrangements – all of these things are important. We should make sure that they're not overlooked in discussion of very important economic considerations and that they're part of the negotiation, too. I'm sure there will be and that we reach sensible arrangements for the future.