FMLC was invited to comment on the EU (Withdrawal) Bill, and has now provided its views to the Ministry of Justice. It is concerned that the wording of the Bill will create confusion. The Bill essentially says that all EU measures that are effective in the UK immediately before exit day will be effect post-exit. FMLC says:
- this will create unnecessarily complexity for market participants trying to work our what applies and what does not
- as a result of this approach, there risks being a divergence between UK and EU law in relation to parts of legislation that were not in force directly before exit and that the UK would as a result of the Bill have to implement directly and in short order if it wished its laws to remain the same as the EU (for example, in areas where it would wish to be “equivalent”) – and this risks the UK not having time to implement these measures before they take effect in the EU. FMLC wonders whether it might be possible to amend the Bill to import all EU laws, including those parts that are not effective before exit day, but state that the relevant provisions will be effective in UK law only when they are effective in the EU;
- following on from this, there is significant uncertainty as to what will happen about Technical Standards that are not in existence or finalised on exit – but without which legislation which is in existence cannot function properly. FMLC gives the example of PSD2, which will be included in the Bill, and the RTS on authentication, which may not. FMLC says this risk is exacerbated by a lack of clarity on how the UK is to mirror the roles of the ESAs post-Brexit.