Carry on complying

As we know, there are multiple facets to Brexit. There is the negotiation to leave the EU; the negotiation with both the EU and the rest of the world for fresh deals after leaving; and the need for implementation of, or lobbying over, current or future laws which will continue to apply to all ongoing members. 

Our government intends to participate fully as a member until the end. But not enough attention is paid to issues arising out of our continuing membership. Those who go on about a ‘quickie divorce’ never mention the severe complications arising out of some of them. And there is no evidence that the government cares much, since it is concentrating so fully on the overwhelming need to sort itself out in the run-up to article 50.

First, there are political issues which are barely mentioned in the British press. For instance, UK MEPs play a prominent role in the European Parliament as chairs of key committees. Vicky Ford, Tory MEP for the East of England, is chair of the Internal Market and Consumer Protection Committee, which could not be more central to the EU’s affairs. Claude Moraes (Labour, London) chairs the Civil Liberties, Justice and Home Affairs Committee, and Linda McAvan (Labour, Yorkshire and The Humber) the International Development Committee. Yet UK MEPs have lost significant power as a result of Brexit, and there is manoeuvring to have them removed as chairs. This movement will gain momentum once article 50 has been triggered. 

As for British staff in the EU institutions, they are running as fast as they can for other nationalities to which they are entitled. Those who have only British inheritance are trying to become Belgian, but the Belgian authorities (nationality, bizarrely, is granted at commune level in Belgium) sometimes throw up obstacles, since EU officials do not pay local tax or always have locally issued ID cards. The commission is being urged to bring infringement action against Belgium for breaches of EU law in this respect.

But it is the legal aspects which will most interest lawyers. These fall into at least three categories: the major directives and regulations that need to be implemented before our likely leaving date, and their post-Brexit impact; the measures into which we will want to opt after Brexit; and the ordinary ongoing lawmaking for the next two years. 

I will briefly mention two random examples from the first category, which is major laws to be implemented soon. They are both regulations (and so directly applicable in member states without needing national implementing legislation, except in relation to enforcement and penalties). They cover data protection and the regulation of chemicals.

The EU General Data Protection Regulation (GDPR) will come into force on 25 May 2018. Last month, the government confirmed that it will be fully implemented by the UK by then, since we will still be a EU member, and so all UK businesses will have to become GDPR-compliant by that date. And after Brexit? If there are UK transfers of data to and from the EU after that date, the UK will need a national data protection law that provides essentially the same level of protection as provided by the GDPR.

It is a similar story with REACH, the regulation on chemicals. The deadline for registration is 31 May 2018. After Brexit, it is unlikely that UK companies will be able to sell products into the EU containing substances against the REACH provisions, because their EU customers will themselves be in breach if they place those products on the EU market. So one assumes that, again, the UK will need to implement a REACH equivalent post-Brexit.

Regarding measures into which the UK government will definitely want to opt post-Brexit, I again choose two at random, both announced recently: access to EU airspace on liberal terms and continued cooperation with Interpol. 

In the third category of ongoing laws, I will stick with a sample of two. First, the Brussels IIa regulation, the cornerstone of judicial cooperation in EU family matters, covering recognition and enforcement of matrimonial decisions, is currently being recast, with potential implications for many ordinary citizens. Second, there will almost certainly be legislation shortly on disclosure of aggressive tax planning schemes by intermediaries, including lawyers. Are we going to be lobbying hard on these? Will they have post-Brexit implications? Almost certainly.

What else is there? Is someone keeping a total, to see what percentage of EU legislation we will either be obliged to maintain or wish to opt into, so that a cost-benefit analysis can be undertaken at some stage about the advantages of actually leaving? I would be more reassured if the government published an up-to-date list of all the laws in my three categories.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs