EURDEMOCRACY

UK’s referendum vote to LEAVE the European Union caught the Government, many Britons and the EU HQ in Brussels by surprise.
Many are still in a state of shock.
Why?
Lack of preparedness for the hugely complex task. Will Brexit threaten the unity of the United Kingdom? Will Scotland leave the UK? Will the shock of losing EU’s second power shatter the EU?
This is what the eminent Constitutional Law Professor Dougan told the UK’s Parliamentary Select Committee of the Treasury on Future relations with the EU.
Professor Dougan: EU legislation applies in the UK without any form of domestic transposition, either by Act of Parliament or by statutory instrument. If we leave without having made a conscious political choice that that legislation needs to be replaced—whether it is replaced in the sense of pure replication or whether it is replaced in the sense of a new statutory regime that differs from the current norms—the danger is that will simply disappear from our legal system upon the point of withdrawal. We will be left with legal vacuums where suddenly we do not have any regulation of important parts of the economy and society.

This does not just apply to agriculture. It applies to important parts of environmental policy and consumer rights. It applies to quite significant parts of financial services regulation. All across the legal system there are pockets of our law—EU regulations in particular—that will need to be put on to a firm statutory instrument basis. If we do not do that, they will disappear. To be frank, it will wreak havoc with the authority of public bodies to take legally binding decisions and with the legal relations of individuals and businesses. It is a job that really needs to be done. …

Professor Dougan: My main worry, which I know is widely shared by many of my colleagues in the field constitutional law, is that this is a job that cannot be done by Parliament alone. It is simply too enormous. In the timescale applicable, it is too enormous. The only feasible, logistical way that we can see this being possible is to make an enormous delegation of power to the Executive. You can have parliamentary scrutiny over the Executive actions. Of course you can—you need to. But in terms of doing such a degree of highly detailed technical work, which nevertheless involves important policy choices, it is very difficult for most constitutional lawyers to imagine how this Parliament could do that for itself in the timescales available.

Q88 Helen Goodman: Would you describe that delegation of power to the Executive as taking back control and reinforcing parliamentary sovereignty?

Professor Dougan: On any measure of ordinary constitutional theory, it would be seen as democratically highly problematic.

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