In light of last week’s referendum decision to leave the EU, we have put together a short guide to the legal implications of exiting the EU.
It is important to emphasise that the position at the present time is that the UK is still a full member of the EU, and there is currently very little clarity about when and how the UK’s legal relationship with the EU will change. There appear to be significant differences between the leading campaigners on the ‘Leave’ side about what the UK’s future outside the EU should look like. It also remains to be seen what will be the terms of any ‘association agreement’ deal made between the EU and UK. It may take a considerable period of time (possibly years) for these things to become clear.
Against the background of this uncertainty, it is impossible to know what the implications of ‘Brexit’ for animal welfare will be. It is likely that there will be some impacts but that they will come about gradually in the years and decades after the UK has left the EU and may be able to adopt different rules and standards in some areas of economic activity.
EU legislation and other measures each take one of the following forms:
Treaties are the EU’s highest form of law. Of particular importance in the animal welfare context are the ‘free movement’ provisions of the Treaties, which have been given a wide interpretation by the EU Courts. In broad terms, the Treaty provisions on the free movement of goods require Member States to allow free access to goods that come from, or have already been admitted to the market in, another Member State.
Regulations bind all EU Member States without the need for national implementation. This means that on the date when an EU Regulation comes into force, it is automatically part of the law of each of the Member States. Although that occurs without the Member State making any implementing domestic (i.e. national law) legislation, Member States will in many cases still make some implementing legislation for reasons of practicality connected with the way that the Member State’s legislation operates, or to address matters of detail such as the precise procedures that will be used for carrying out the Regulation’s requirements.
Directives do not automatically become part of the Member States’ laws. Member States are obliged to implement a Directive by making domestic legislation that ensures that the results required by the Directive are achieved. Such domestic legislation is part of the Member State’s law in the same way as any other domestic legislation.
There are also Decisions (binding on the national states to whom they are addressed) and Recommendations (non-binding opinions). Decisions and Recommendations typically deal with individual cases or matters of detail.
EU legislation affecting animal welfare will generally be either a Treaty provision, a Regulation or a Directive.
There is also case-law consisting of the judgments of the EU Courts (the Court of Justice of the European Union and the General Court).
THE EFFECT OF A DECISION TO LEAVE THE EU
Most experts agree that in order to give effect to the decision to leave the EU, the UK Parliament would have to repeal (or at least very substantially amend) the European Communities Act 1972 (which gives supremacy to EU law in the UK) and, at the EU level, it would have to invoke Article 50 of the Lisbon Treaty. The UK would invoke Article 50 by giving formal notice to the EU that the UK wished to cease to be a member. This notification would trigger the start of a 2 year period in which that Member State would seek to negotiate with the rest of the EU the terms of its departure.
SO, WHAT WILL HAPPEN TO UK ANIMAL WELFARE LAWS WHICH ARE DERIVED FROM EU LEGISLATION?
The process of withdrawing from the EU will not be immediate and in the meantime the legal position is unchanged. Therefore, there will be no immediate change in the laws applicable in the UK which affect animal welfare. This includes both UK legislation (which may be English, Welsh, Scottish or Northern Irish legislation) implementing Directives, and Regulations (which, as noted above, are part of UK law without any need for implementing domestic legislation).
The formal position once the UK leaves the EU will be as follows:
Domestic legislation implementing Regulations and Directives would continue to have effect unless and until they are repealed by new domestic legislation.
EU Regulations and other decisions which are binding directly without the need for domestic implementing legislation will no longer have a binding effect on the UK after its withdrawal, unless Parliament legislates to provide that Regulations made prior to the date of the UK leaving the EU will continue to be part of UK law unless and until they are expressly or impliedly repealed by new domestic legislation.
Given the vast amount of UK legislation that originates from the EU, it is very likely that the UK Parliament would, for reasons of practicality, pass legislation providing that the UK’s departure from the EU would have no immediate effect on the applicability within the UK of existing EU legislation. An especially complex and controversial issue might be the extent to which matters which are currently determined at EU level will be reserved to the UK Parliament, rather than being legislated for separately in Scotland, Wales and Northern Ireland. At present the Scottish Parliament and Northern Ireland Assembly in particular have very broad competence over areas that are relevant to animal welfare, but in practice EU law requirements ensure that legislation in Scotland, Northern Ireland and the rest of the UK are very similar in areas such as farm animal welfare.
It is possible that the UK and/or devolved governments may decide to review all EU-derived laws to decide which ones to keep and which ones should be amended or repealed, but such a process would probably take place over a long period (e.g. 5 years) because of how large an undertaking this would be. Policy areas would probably be tackled in sequence (e.g. transport, environmental protection, farming, etc.).
At this stage, no one knows what approach will be taken for ensuring continuity in legal requirements following the UK’s formal departure from the EU, but it is very likely that the pre-existing law will simply be ‘carried over’ so that there is no hiatus in regulation.
TRADE LAWS WHICH IMPACT ON ANIMAL WELFARE
It is possible that Regulations made by the EU which ban the importation by Member States of animal products (such as the ban on seal products (see ) and cat and dog fur) would no longer have effect in the UK. The UK may therefore be free to import these products again unless legislation is passed banning the importation of these products. This would be a policy decision for the UK Parliament and Government.
Conversely, the UK may be free to impose a ban on certain products from Member States within the EU. Currently, this is generally not possible as such a restriction would probably be regarded by EU law as a ‘measure having equivalent effect to a quantitative restriction’ on goods from other Member States, and would therefore be regarded as being in conflict with the principle of freedom of movement of goods contained within Article 34 of the Treaty of the Functioning of the European Union (‘TFEU’).
If the UK is no longer bound by the free movement of goods, then this may enable the UK to impose a ban on the importation of certain animal products (such as foie gras) from Member States within the EU, as well as those countries outside it, on grounds of public morality, where animal welfare concerns arise. It is important to note, however, that such restrictions may breach the terms of any ‘association agreement’ that is now made between the UK and the EU, or may breach World Trade Organisation rules or the provisions of any trade agreements that may now be made between the UK and other countries (e.g. Canada, USA, Australia, China, etc.). The WTO has a formal dispute resolution system for adjudicating on disputes between States. Trade agreements generally provide for dispute resolution mechanisms by which the contracting States may bring disputes to arbitration proceedings. Some agreements may provide for businesses to bring disputes to arbitration.
The UK civil service currently lacks expertise in negotiating trade agreements and dealing with trade disputes, since these things are currently dealt with at the EU level. It remains to be seen how willing the UK will be to impose restrictions for animal protection reasons, in circumstances where the restrictions may trigger a dispute.
WHAT DOES THIS MEAN FOR ANIMAL WELFARE?
ALAW recognises the inevitable questions: what will Brexit mean for animal welfare and how do we ensure that laws protecting animals remain as tough – if not tougher – once the UK leaves the EU.
We are organising a symposium in July to address these crucial issues. We will draw upon the skills of experts in EU law and leaders in the field of animal welfare to create an opportunity for NGO’s and practitioners to come together and discuss the challenges and opportunities that Brexit creates for animal protection.
Please email [email protected] to register your interest for this event.
 Regulation (EC) No. 1007/2009 of the European Parliament and the EC Council of 16 September 2009), together with an implementing regulation setting out exceptions to the ban (the “EU Seal Regime”) prohibiting the import and placing on the market of seal products, with certain exceptions and Regulation No 1523/2007 on the ban of dog and cat fur.