Things have become clearer since the seminal speech given by the Prime Minister on 17 January. Until then, it was difficult to see how the civil servants had been able to con Westminster into the bizarre idea of the Grand Repeal Bill. Hidden away in Mrs May’s speech was the following explanation:
“And it is why, as we repeal the European Communities Act, we will convert the “acquis” – the body of existing EU law – into British law. This will give the country maximum certainty as we leave the EU. The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”
So now we know; the Grand Repeal Bill will do absolutely nothing at all except to repeal the ECA 1972 -something which the simple repeal of that statute would do, although Westminster remains under a delusion on that point.
The government lawyers will have said that it is all very complicated, and no doubt the Bill that they draft will be full of complex provisions, which will actually have no effect whatsoever, but will look impressive.
The official Whitehall line has been clear since the 10,000 signature point was reached in an e-petition seeking the repeal of the ECA 1972. This triggered a mandatory response from the government, and this was it, from the Foreign and Commonwealth Office:
“The rules for exit are set out in Article 50 of the Treaty on European Union. The Government set out the process for Article 50 in the policy paper, ‘The process for withdrawing from the European Union’, published on 29 February 2016. Paragraph 3.2 in the paper states that:
The UK’s membership of the EU is established by the EU Treaties, and Article 50 is the process set out in the Treaties for Member States to follow when leaving. It is the only lawful way to withdraw from the EU. It would be a breach of international and EU law to withdraw unilaterally from the EU (for example, by simply repealing the domestic legislation that gives the EU law effect in the UK). Such a breach would create a hostile environment in which to negotiate either a new relationship with the remaining EU Member States, or new trade agreements with non-EU countries.
The House of Lords EU Committee report on ‘The process of withdrawing from the European Union’ of 4 May has also said that “If a Member State decides to withdraw from the EU, the process described in Article 50 is the only way of doing so consistent with EU and international law.”
The Prime Minister said on 27 June in his statement to the House of Commons on the referendum that “the only legal way that has been set out to leave the EU is by triggering Article 50”.
The Prime Minister has been clear that the decision to trigger Article 50 and start the formal and legal process of leaving the EU will be for the next British Prime Minister and the next Cabinet.”
This line is wrong. The repeal would not be a breach of international law. The ECA 1972 is a domestic UK statute, and nothing to do with international law. The UK Parliament is at complete liberty to repeal it. Of course it could not do so before 23 June 2016, but after that date it became imperative that it did so. Article 50 is part of the Lisbon Treaty, which did not become part of UK law until December 2009. Before that date, the only way the UK could have left the EU was by repealing the ECA 1972. All Article 50 does is to superimpose a layer of EU bureaucracy on top of that existing regime. And all this stuff about a “hostile environment” for the negotiations is just risible.
It would clearly be very much in the interests of the UK to repeal the ECA 1972 as soon as possible, and in any event before the triggering of Article 50. As things stand, however, things are looking bleak on this front.
With a view to oiling the wheels, and with (albeit undue) deference to the Westminster delusion, here is a draft ‘Grand Repeal Bill’:
In this statute, the following words and phrases have the meanings assigned to them:
“ECA” means the European Communities Act 1972
“the Repeal” means the repeal of the ECA
“consequent repeal” means the repeal of any statute, statutory instrument, regulation, directive or other law other than the ECA automatically repealed by the Repeal
“consequently repealed provision” means anything which has been the subject of a consequent repeal”
- The ECA is repealed
- Any consequently repealed provision is hereby restored to UK law.
It is so easy to do, there really is no earthly reason why it should not be undertaken now!