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Post Brexit legal tangle would be a lawyers’ bonanza

Most of us will know that one of the main charges being levelled against the Leave campaign is that they have failed to answer the key question – what the UK will look like if we do vote to leave.

This failure has not only emphasised the incoherence surrounding the economic case for Brexit, but it also begs questions as to precisely how a British withdrawal from the EU will be conducted and how long it will take.

Vote Leave campaigners have repeatedly shown they are unable or unwilling to answer the question. As practising lawyers we have to interpret EU and UK law all the time to advise those who instruct us about the risks of what might happen after June 23. While we are both clear that it is in the UK’s interests to remain as members we can’t, unlike the Brexit campaigners, simply ignore the “what if?” question.

The first point to note is that if we still wanted access to the EU single market of 500 million consumers, our largest trading partner and the biggest single market in the world, then we would have to abide by the EU regulations and laws governing that market – so, for example, safety standards for food, cars, toys, chemicals and medicines.

But, crucially, we would no longer have any say on those regulations and laws, despite the fact that a substantial proportion of UK business would have to abide by them.

To expect that future EU legislation could be guaranteed to reflect UK interests without us at the table, or that we could somehow ignore the continuing requirements of EU law on the supply of goods and services, is simply wishful thinking.

Article 50 of the Treaty on European Union (TEU) provides that the UK would need to give two years’ notice of its intention to leave the EU. The European Communities Act 1972 (‘ECA 1972’) would have to be retained in place during that period. The UK is unlikely to behave as a rogue state, so the second point is that the ECA 1972 could not simply be repealed on 24 June 2016.

After the expiry of the two-year notice period required by Article 50 TEU and upon leaving the EU, Parliament might in principle repeal or amend the ECA 1972 to provide, in effect, that EU law now took effect within the UK and was to be treated as binding until further repeal. That would be a stopgap measure but would simply incorporate EU law into UK law.

In the middle to long run, the UK Government would have to establish some form of cross Government taskforce to consider every bit of EU legislation and decide whether it should be retained. Any amendment or repeal of the ECA 1972 would also have to specify what effect, if any, would then be given within the UK to new EU legislation, administrative guidance and case law of the ECJ in those areas of UK law that have been affected by EU law.

It is clear that it would be a very substantial endeavour, diverting huge resources from within the Civil Service away from the big challenges of the day and toward a complex, legal and bureaucratic process.

It would be a task of unprecedented complexity to consider which directly applicable EU law provisions we would either need, or wish to keep and to what extent and on what legal basis, or whether they should be replaced. In addition, we estimate that there are at least 2000 pieces of UK secondary legislation which would need to be reviewed and then either repealed, amended or re-implemented.

On top of this legislative review, Parliament and the UK Courts would need to consider the extent to which interpretation of EU law by the ECJ (or by EU institutions adopting decisions under EU law) would continue to be followed and what rights, if any, EU nationals would continue to enjoy within the UK. Again, we would have lost our ability to take part in EU cases or to appoint judges to the EU courts.

The continuing significance of the fundamental principles underlying the EU Treaties (such as the free movement of goods, services, capital and persons, together with major policies such as equal treatment and competition policy), and of significant pieces of EU legislation (governing issues such as environmental policy, employment law, telecoms and fair procurement of goods and services), many of which were developed in cooperation with other EU countries and have been accepted as binding on the UK for over forty years, would have to be considered in depth by central government.

That would involve working with the devolved administrations, local government, the NHS, industrial organisations, trade unions and so on. Larger items of legislation would also no doubt be expected to be subject to a detailed and lengthy consultation exercises.

For pro-Brexit campaigners to think that the UK could simply swan off without giving any of the matters set out above any consideration is a dangerous fantasy.

While they might be able to take heart in having finally identified one group of people, the lawyers, who stand to gain from the chaos that would follow a Brexit, it is clear that the unprecedented scale and complexity of the process itself would require a significant diversion of precious resources.

We believe it is clear that this diversion would paralyse us in our ability to deal with the issues that matter to families across the EU – health, education, housing to name just a few and instead jeopardise the efficient governance of the UK for a period of years to come.