A great deal of attention has been given to this topic in recent weeks, in two distinct respects. Firstly, there was all the talk surrounding the White Paper on the Grand Repeal Bill, with the notion that tens of thousands of bits of law are going to have to be transposed in an indeterminate way. Some informed commentators have been pointing out that this required revisions will, necessarily, take perhaps ten years to achieve, but then have had those comments wrongly linked to the period of ‘two years’ referred to in Article 50 of the Lisbon Treaty, leading to the entirely false conclusion being arrived at that we cannot possibly leave the EU within that period!
All this has led to wholly needless confusion over what is essentially quite a straightforward situation.
Starting with the obvious point, the UK will remain a full member of the EU until it is released from the Treaties of the European Union (“the Treaties”) by the provisions of Article 50 – an event which will occur on or before 29 March 2019. On that happening, the UK will cease to be a member of the EU. Period.
The “before” and “after” situations, with regard to the law of the UK, are different in only one technical respect; all the Regulations made by the EU will suddenly and immediately cease to be directly applicable in UK law, which means they will vanish like a puff of smoke unless something is done to alter that situation. (It is to be hoped that the statute arising from the Great Repeal Bill will indeed immediately restore them all to UK law, but I deal with this below).
The remainder of the EU law in UK law is in the form of statutes, statutory instruments, and orders of all sorts made under those bits of legislation, almost all of it giving effect to Directives issued from the EU – much of it having been routinely “gold-plated” by the Civil Service in the process, by the way. The vast majority of EU law in UK law is in this form, and it is in no way dependent on the UK continuing to be a member of the EU because it is enshrined already in UK domestic law.
All this law, together with the said Regulations, can conveniently be referred to as “the Acquis”.
Conspicuous by its absence from the above is any reference to the European Communities Act 1972 (“the ECA”). This is because the statute is now completely pointless – subject to one, potentially, heart-stopping proviso. The sole effect of the ECA is automatically to insert the Treaties into UK law, and it has done that, to date, very successfully. Accordingly, the ECA now serves no useful purpose whatsoever and, in particular, it is wholly irrelevant to the Acquis, so it should be repealed as soon as possible.
Further, the continuing existence of the ECA is now actually dangerous, and this leads us to the ‘heart-stopping’ proviso to which I refer: the Government talks of repealing the ECA “as we leave the EU”, and herein lies the danger. We will leave the EU either on the verified vote of the European Parliament on a formal Article 50 Agreement, or if that vote has not occurred by midnight on 28 March 2019, then we leave as that midnight hour strikes. If, by some horrible chance, the ECA has not been repealed at that moment, it will promptly replace in UK law all the Treaties, from which the UK will just have been released!
It is this extreme danger which places the ECA in its proper context. As the Supreme Court has expressly held (“Thank you, Gina!”), the ECA can be repealed just like any other statute and this should be undertaken as soon as ever possible, therefore.
We come now to the White Paper on the “Grand Repeal Bill”, which is quite long but the statute which eventually flows from it can be very brief indeed, needing only to achieve three fairly simple objectives, namely:
- The immediate repeal of the ECA;
- The restitution to UK law of all the Regulations on the UK being released from the Treaties at the end of the Article 50 process; and
- Some necessary arrangements to come into effect at the same time.
This third limb has been nicknamed the “Henry VIII provisions”, about which the Labour Party, and elements of the media & social media have become highly exercised. The complainers’ gripe revolves around their expressed fear that the Government will sneakily attempt to assume power thereby to make and change laws at will “without going through the proper Parliamentary process”.
This is not what the White Paper suggests at all! What is envisaged is nothing more than some very dry and boring, but nonetheless essential, administrative provisions being made by statutory instrument – an order issued by the Government and having the force of statute law, but being simply “laid” before Parliament rather than discussed and debated.
The reason why these very limited powers are necessary is that some of the Acquis simply will not make sense at the relevant time – e.g. there might be a reference to an application or appeal to some institution of the EU to which the UK will have no access after the UK is released from the Treaties; it is sincerely to be hoped that the Parliamentary draftsmen will have the skill so to constrain the powers given by this third limb so as to defuse all this misguided furore.
Finally, I should seek to address all the bewildered whining about ‘thousands of rules having to be transferred’, the ‘sheer complexity of the problem’ and ‘the hopelessness of trying to do it all within two years’, etc.’
To answer the ‘two years” point immediately: this period, which is referred to in Article 50, provides that the UK will be released from the Treaties two years after that recent Notification – assuming no agreement to the contrary is reached beforehand, of course. Until the UK is released from the Treaties, it is powerless to change anything – so mention of ‘having just two years to transfer and/or change rules’ is utterly misplaced, therefore.
Further, and as I outline above, most of the Acquis are firmly embedded in UK domestic law and remain there regardless of whether the UK is in or out of the EU. That said, action will need to be taken with regard to extant EU Regulations, but a short, universal blanket clause in the “Great Repeal Bill” statute could, at a stroke, provide for the restoration of all those Regulations straight back into UK law at the very moment of our departure from the EU.
Once released from the Treaties, the UK will, for the first time in nearly half a century, be free to be in control of its own laws. Subject always to the need for a few urgent administrative “tweaks” which will no doubt need to be undertaken in the immediate aftermath of our leaving the EU, the UK Parliament has the rest of eternity to repeal or amend any part of the Acquis at any time, and in any way it subsequently sees fit.
And that, my friends, is the top and bottom of it all.