Plenty was made of the European Union’s influence over UK law during the Brexit campaign of 2016, with ‘Leavers’ holding it up as an example of stolen sovereignty and a reason to cut ties, while ‘Remainers’ extolled the positive impact of sharing regulations around human rights, workers’ rights and food-production standards. However, the United States of America has also had an impact on our laws over the years, from the introduction of a national minimum wage to passing similar counter-terrorism legislation. Many believe that, in a post-Brexit world, the US could wield even more influence.
The minimum wage
The idea of introducing a national minimum wage was a key policy for Labour in the 1997 general election and went onto become a key piece of legislation. Following the party’s victory, the Low Pay Commission was set up and produced its first report in 1998. In April 1999, the National Minimum Wage came into being, at an initially cautious, relatively low rate of £3.60 per hour for adult workers over the age of 22, and £3 for those aged 18–22. Labour had already run with the policy in their losing 1992 general election campaign, but had seen the Conservatives hit back by publishing figures claiming it would destroy between 750,000 and 2,000,000 jobs.
This time around, in 1997, debate over a national minimum wage in the UK was largely influenced by debate that was already happening in the US. Our transatlantic neighbours had a far longer history with laws around this, both at state and federal level (dating back to the 1930s), but research published in the mid-1990s meant it was back in the American public eye: a 1994 study by Princeton economists David Card and Alan Krueger found that increases in the minimum wage didn’t lead to job losses. This gave Labour politicians in the UK new evidence to point to when arguing for a national minimum wage.
Another area in which UK law has been influenced directly by goings-on in the US is counter terrorism. In the 20th century, Britain passed emergency legislation to deal with violent conflicts between Protestants and Catholics in Northern Ireland and with the IRA terrorist attacks. However, since 2000—and especially since the 9/11 terrorist attacks in the US—Britain’s attention has been directed at dealing with escalating international terrorism. In 2000, parliament adopted the Terrorism Act, a law that annulled the British emergency legislation that had been directed primarily at Irish terrorism, and completely revised the legal tools against terrorism.
This Act included a definition of the term ‘terrorism’ in Section 1, as the use or the threat of action intended to advance a political, religious or ideological cause, or which was planned with the purpose of intimidating or frightening the public in order to force the government or any other government authority to act or refrain from acting. This included the use of violence against a person, serious damage to property, serious disruption of infrastructures, systems or utilities, or any other act that endangers public health or safety. The law also established offences linked to terrorism (including membership or assistance of a terrorist organisation) and imposed harsh punishments for them.
The Terrorism Act of 2000 also included provisions for the arrest of people suspected of involvement in terrorism and provisions regarding search and detention powers. The law authorised the arrest, prior to serving an indictment, of those suspected of involvement in terrorism for up to 48 hours, which can be extended by a judge's warrant for another seven days.
Immediately following the 9/11 attacks the following year, the UK began developing further legal tools to confront international terrorism. In December 2001, parliament adopted the Anti-Terrorism, Crime and Security Act (ATCSA), which considerably extended the powers of security services in a broad number of areas related to the war on terrorism. In the years 2001–2003, UK authorities arrested 16 foreign nationals on the basis of the ATCSA.
At the same time, the US was also passing new legislation to fight terrorism. After 9/11 it passed the US Patriot Act, which significantly revised dozens of existing American laws to allow US security agencies to take new measures—including invasive powers of search and surveillance, detention and seizure of property—which previously had not been used because they compromised human rights and basic freedoms.
The US administration also passed new legislation to allow the detention of hundreds of suspected Taliban fighters and members of Al-Qaeda captured during the fighting in Afghanistan and their prosecution for war crimes. In 2001, president George W Bush issued a presidential order, Military Order Number One, authorising the arrest of members of Al-Qaeda and anyone who took part in, gave shelter to, abetted or conspired to commit acts of international terrorism, as well as their prosecution in special military tribunals created for that purpose.
On the basis of this order, the US arrested hundreds of people during the fighting in Afghanistan and secretly took them to a US Navy detention facility in Guantánamo Bay, Cuba. They were detained there for an unlimited period of time, without judicial review and without the possibility of meeting and consulting a lawyer.
There are similarities between the measures taken by the US and the UK. In both countries, the acts of anti-terrorism legislation that were adopted gave their security agencies broader powers in the name of the ‘war on terror’ by permitting more invasive techniques — surveillance, supervision, detention and seizure and confiscation of property — as well as by establishing special offences linked to terrorist acts and unusually heavy punishments for them.
However, the UK didn’t pass legislation allowing the detention of suspected terrorists as ‘illegal combatants’ as the US did. UK law sees suspected terrorists as criminals against whom administrative and criminal measures should be taken; the US considers suspected terrorists captured during fighting to be ‘illegal combatants’ who aren’t entitled to the status of prisoners of war and the protections set forth in ordinary criminal law.
The US looks set to have influence over more UK law in the future, specifically in light of Brexit. In July, the government's Brexit White Paper asserted that the UK hopes to create a free trade area in goods with the EU, as well as forging its own trade deals around the world. But Donald Trump said in an interview with The Sun that the government's current proposal for its future relationship with the EU would “probably kill” any US-UK free trade deal.
In a later news conference with Theresa May at Chequers, the president slightly changed tack, but it was clear Trump still seeks to influence any deals the UK makes with the EU. “If they're going to go a certain route, I just said I hope you're going to be able to trade with the United States,” Trump remarked.
"I read reports where that won't be possible but I believe, after speaking with the prime minister's people and representatives and trade experts, it will absolutely be possible.”
As part of the EU, the UK doesn’t allow the import of genetically modified food, chlorine-washed chicken or nearly all types of hormone-injected meat—all of which are allowed in the US. The US hopes to pressure the UK into changing these regulations in negotiations on a future trade deal, but the terms of the Brexit White Paper wouldn’t allow it if the UK wants to maintain ‘frictionless’ trade with the EU.
“We don’t currently have border checks because the French, for example, assume the UK is enforcing EU regulations,” Alan Winters, director of the UK Trade Policy Observatory at the University of Sussex told the BBC in July. “If we changed the rules for US-imported goods after Brexit, they'd want to start putting in checks.”
It’s not just Trump seeking to steer UK regulations. His commerce secretary Wilbur Ross, speaking at the CBI conference in London last November, said it was important that any Brexit deal between the UK and the EU should take into account Washington's “commercial interests and does not hinder the development of a closer US-UK relationship”.
He warned that the UK should take steps to “avoid any unnecessary regulatory divergences” with the US.
In terms of the services industry, the stance of the US could also have an influence on UK laws. In 2017 the EU was the biggest market for UK services exports around the world, but the largest single market for UK services exports outside the EU last year was the US—what they think matters.
Areas of Divergence
However, the US doesn’t wield influence over all areas of UK law. Employment and contract law here, for example, differs greatly to the approach in the US. James Faulkner, a specialist legal copywriter, said in a 2013 blog post: “Employment law in the UK and the rest of Europe is designed to protect employees, whereas the US tends to favour the employer in many regards.
“For instance, if you’re an employer in the UK you can terminate an employee’s contract only with a justifiable reason, and you can be taken to a tribunal if the employee believes they have been unfairly dismissed. However, in the US ‘at-will employment’ is commonplace, where the employer is free to discharge individuals for ‘good cause, bad cause or no cause at all’.”
The ‘bread and butter’ of most commercial law firms is the drawing up of contracts. There are also several differences between contract law in the UK and the US. Firstly, the two nations have different understanding of the term ‘good faith’. Unlike US law, UK law doesn’t work on a general implied duty of good faith, except in certain areas such as employment and insurance law.
Secondly, the two nations differ when it comes to limitation clauses. In UK law, if a breach of contract leads to loss of revenue, production and profit, the contract must expressly state that such losses are excluded to ensure their exclusion. In the US, the words “indirect and consequential losses” expressly exclude loss of revenue, production and profit that stem from a breach of contract.
Thirdly, the concept of a unilateral mistake is different in the two nations. Under US law, a mistaken party can avoid a contract if enforcement would be unconscionable and the innocent party did not know or have reason to know of the mistake. In the UK, the contract is only void if the innocent party knew of the other party’s mistake and the mistake relates to some fundamental part of the offer.
In summary, while the US may have significant influence here in the UK—in terms of laws but also in terms of events.