UK examines plans to avoid ‘zombie laws’ as Brexit wreaks havoc on statute book

31 January 2017 9:54am

8th September 2016. By Matthew Holehouse

Brexit ministers are reviewing how best to replace swaths of UK legislation based on EU law, which threaten to leave Britain’s statute book incomplete once the country has left the bloc.

Robin Walker, a minister at the UK’s Department for Exiting the European Union, has told a committee of lawmakers examining environmental policy that officials would review all legislation to ensure regulations aren’t left in limbo in the wake of Brexit.

To achieve this, UK ministers will have to repeal the keystone legislation that gives a large number of EU laws direct effect in the UK.

“[T]here will be an awful lot of law reviewed [which] currently refers to EU bodies, to make sure we find appropriate bodies to take that forward under UK jurisdiction,” Walker said.

“Right at the end of the process, there will be a major review of the whole statute book,” he said. “It will be for the UK parliament and UK government to make sure the law is working properly and has the right force behind it.”

The European Communities Act 1972 is the UK statute underpinning European regulations, ensuring they’re anchored in EU law while enabling them to apply in Britain. Scrapping the act will wipe out hundreds, possibly thousands, of laws drafted in Brussels and applicable in the UK.

Other EU directives, which set the broader legislative boundaries, will continue to apply in the UK even after Brexit, because they have already been fully written into UK law.

On leaving the bloc, ministers face the task of deciding which of UK laws which transpose EU legislation are to be kept, amended or scrapped altogether.

Asked about the fate of the European Communities Act, Walker told lawmakers that it “will certainly have to be repealed” and that “many laws referring to it will have to be amended.”

‘Zombie’ laws

One option for the UK government after it repeals the European Communities Act would be to simply write all European regulations directly into British law.

But academics have warned that such direct transposition could create “zombie” legislation — laws which remain in place but are not enforced, with the European Commission and other EU regulators no longer part of the equation.

Thérèse Coffey, a minister in the Department for the Environment, Food and Rural Affairs, told the hearing that the problem of “zombie” legislation wouldn’t arise.

“EU law will apply until the day we leave,” Coffey said. “The details will be gone through and, if there are gaps, we will identify them.”

No return to smog

Coffey and Walker told the House of Commons Environmental Audit Committee that the government had no plans to scale back environmental protections following Brexit.

But Brexit does offer the opportunity to rewrite policies, to make them focus more on the UK’s needs than on complying on EU-mandated processes, Coffey said.

“We are not trying to get out of any environmental commitment,” she said.

“I don’t want people to be worrying about going back to the smog of the 1950s” — a reference to the combination of polluting smoke and fog that blighted post-war London.

Walker told the committee that, in general, there was little appetite from businesses for significant deregulation of environmental protections. “When we meeting business groups, they were talking about wanting to maintain equivalence in order to sell products,” he said.

“What we were not seeing was lots of people saying their number one priority is to scrap lots of environmental laws.”

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