Market Regulation Alignment: Pre and Post-Brexit Analysis
Delve into the evolution of market regulation alignment before and after Brexit, exploring key time periods and policy contexts. From the UK's accession to the European Communities to the implications of the Brexit transition, this analysis examines the instrumental choices and democratic oversight intertwined with regulatory shifts. Explore the impact of the European Communities Act of 1972 and the ongoing alignment efforts during membership to understand the nuances of market regulation post-Brexit.
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Presentation Transcript
To Align or Not to Align Market Regulation after Brexit Kenneth Armstrong Professor of European Law University of Cambridge
Three Time Periods: Accession and membership Transition Post-membership Outline Three Dimensions: Policy Context Instrumental Choices Democratic Acountability and Oversight
UK leaves EFTA and accedes to European Communities: commitment to align with rules at that time and to implement new rules over time. In 1970s limited EU regulatory policy and EU rules focused on Customs Union and CAP. Emergence of regulatory policy in late 1970s given step change in Internal Market programme 1985-92. Strongly backed by UK. Policy Context - Membership Maturity of EU legislative framework sees shifts away from use of directives to regulations. Increased rule-making activity at the delegated and implementing levels. New EU legislative frameworks for new markets in mobile telephony, data roaming, internet sales. Shift from approximation to new rule-making. By time of Brexit, EU regulatory policy is broad covering goods and services and is deep.
Take Back Control over laws and trade exit from EU and Customs Union and Single Market BUT, three caveats: Existing EU law to be domesticated as UK law perfect alignment Transition period UK to continue to align for the period of transition Avoiding a hard border on island of Ireland Policy Context Brexit Repeal of the European Communities Act as a policy choice prior to transition. Future alignment/divergence a function of trade policy ambitions and domestic political factors.
European Communities Act 1972: Gives domestic legal effect to the Accession Treaty Also gives effect to the original Communities treaties and any other treaty that is added by way of statutory amendment of the 1972 Act Section 2(1) gives effect to directly applicable EU regulations ambulatory with UK alignment automatic. Section 2(2) allows statutory instruments to implement EU directives alignment requires intervention. Instrumental Level - Membership Ambulatory quality of section 2(1) originally more significant for CAP than market regulation. Other primary legislation contained powers similar to section 2(2) and could be used for the same purpose: Food and Drugs Act 1955 and later Food Act 1984/Food Safety Act 1990 Consumer Protection Act 1987 implements Toy Safety Directive Health and Safety at Work etc Act 1974 implemented Biocides Directive
Instrumental Level Continuing Alignment During Membership Section 2(1) engaged more as EU shifted regulatory frameworks from directives to directly applicable regulations. Section 2(2) increased in significance as EU regulatory policy expanded. Alignment secured through increased SIs as Single Market rules development but also through ambulatory qualities of section 2(1) and specific SIs. Paragraph 1A to Schedule 2 of the 1972 Act inserted by section 28 of the Legislative and Regulatory Reform Act 2006: allows domestic SIs to have an ambulatory quality by cross-referring to EU instruments that are amended over time.
Growth in EU SIs Very few market regulation SIs in first decade of membership Number grows during Internal Market Programme. Total SIs exceed 200 in every year 1999-2011.
Instrumental Level Exit and Transition Legal Tasks: 1. Give effect to Withdrawal Agreement and its provisions on transition to ensure continuing alignment during transition Continuing alignment for manufactured goods and agricultural products in Northern Ireland. Static perfect alignment of UK rules at exit date or at end of transition if Withdrawal Agreement implemented. Repeal the European Communities Act. 2. 3. 4. European Union (Withdrawal Agreement) Bill (WAB) for 1-2 European Union (Withdrawal) Act 2018 passed for 3-4
Repeal of ECA in 2018 Act complicates ability of WAB to give effect to transition. WAB introduces new section 1A into 2018 Act to allow the effect of section 2(1) ECA to apply to Part 4 of Withdrawal Agreement notwithstanding repeal. Repealing and Resurrecting ECA 72 WAB also introduces a new section 1B into 2018 Act to allow the effect of section 2(2) ECA to be maintained for new rules entering into force during transition. Ambulatory alignment as well as alignment via SIs is maintained through the ghost of the ECA.
WAB introduces new section 7A into 2018 Act to reincarnate the wording of section 2(1) ECA when applied to Protocol on Ireland/Northern Ireland. WAB introduces a new section 8C into the 2018 Act to give ministers power to make statutory instruments to implement the Protocol. Section 19 of the 2018 Act: Nothing in this Act shall prevent the United Kingdom from replicating in domestic law any EU law made on or after exit day Static perfect alignment at exit day (or at end of transition period) via 2018 Act. After Transition/Membership Hundreds of SIs come into force to amend the body of retained EU law to make it work outside EU membership Ambulatory alignment ceases and replaced by ministerial discretion conferred by statutory instruments.
Taking back control over laws is also about democratic control. Critique of the regulatory state is transfer of power to technocratic decision-makers and executive agencies. EU governance as a form of regulatory state. Democratic Oversight Brexit is not demolishing the regulatory state but recreating it in national form. Explosion of delegated powers at central and devolved levels. WAB introduces section 13A into 2018 Act to give Commons Select Committee oversight of new EU legislation during transition period. Misses the point that most new EU rules are non-legislative acts and real issue is who is monitoring UK and devolved ministers.
