Daily Telegraph: Brexit legal myths and the damage they are causing

In leaving the EU, Britain must not shy away from the chance to escape the bloc’s slow-moving and often convoluted legal system

Two legal myths stymie the UK’s Brexit thinking. First, that all modern laws are substitutable and differences between the UK’s and EU‘s laws and legal reasoning merely reflect different ways of achieving the same results. Secondly, the consequential myth that no benefits will be gained from rewriting or removing EUlaws after Brexit. This second myth can even develop into the further proposition that removing (or rewriting) EU laws after Brexit would involve the lowering of standards, an idea which in itself is mistaken since any rationalisation in law does not necessitate its overall slackening.

Each of the two myths is wrong and the damage caused runs deep. The EU legal system is at odds with the needs of a free market. Its execution effectively prioritises the role of EU officials to the detriment of individual entrepreneurialism. This is because of an opaque EU legislative process, a lack of legal clarity and the far-reaching purposive, or non-literal method of interpretation.

The EU‘s legislative process is in constant motion. A massive programme of legal harmonisation across the EU has been under way. Member state laws have been truing up to concepts and features wherever they are found in the bloc, with little regard to necessity.

Supposed to create a single EU market, it has instead controlled and restricted enterprise and growth. The result is a hugely prescriptive blanket of law, which transfers authority from member states to the EU itself.

The process has largely been one of constant accretion. Rarely (if ever) does it remove or simplify. Nor does the slow legislative process make for dynamic change. It facilitates delegation to EU “technocratic” authorities with their own politicised agendas. Standards are set to reflect the interests of current commercial incumbents, often only in specific member states, so damaging weaker rivals and making new entry problematic. The problem is exacerbated by EU trade deals and the half-built euro – both structured in ways that further enhance incumbent interests. The UK has rarely been the beneficiary, save for the emergence of the harmonised market itself. Its industrial base has instead faced emasculation.

‘The UK’s approach permits rapid growth in sophisticated markets’ The role of EUofficials is embedded. The purposive method of interpretation gives them a central role in asserting what the law is. The approach is that nothing can be done unless permitted. This, combined with the proactive ECJ, allows officials to “identify” new purposes and morph the law. Legal meaning cannot be verified by the private sector from the text itself and the ECJ cannot be relied upon to adopt a predictable, literalist approach. As a result, the UK’s high standards, with fewer but focused and clear rules of objective meaning, have been subsumed.

The results speak for themselves. EU economic growth compares unfavourably with that in other parts of the world. War debt, only just paid off, held back the UK’s post-war economic growth. Germany’s debt was rescheduled, with half written off, in 1953 in a manner that encouraged the purchase of German goods. But just as the UK re-engages, the EU‘s rules in the financial sector are now reaching into and seeking further to control new areas, and supplant the British legal system.

To read Barney Reynolds’s piece for the Daily Telegraph in full, click here.

sign up to our Newsletter