As Nigel Farage pointed out on Question Time on 8 December, the UK could leave the EU in two weeks. It is neither a complex nor a difficult thing to do.  As he said, we simply tell them we are out, and offer free trade. The way in which this should be done, however, is one of which the High Court would have approved.

The short point is that the repeal of the European Communities Act 1972 (“ECA 1972”) is what must happen; it should have happened on 24 June, and would have happened then if the government had contemplated the possibility of a vote to leave the EU. The repeal would kill the litigation, and the linked hostility from the Welsh and Scottish Governments and from the LibDems, who have 100 peers in the Lords.

It will be recalled that Gina Miller’s lawyers based their whole case on the ECA 1972. It would also restore sovereignty to the UK Parliament, and make the Article 50 negotiations much easier. In particular, we could stop paying money to the EU whenever we liked, and regain control of our borders when and how we chose.

Why is it not being done? There are two parts to the answer, which might conveniently be called respectively “Whitehall” and “Westminster”.

Whitehall, and in particular the legal departments, have lived and breathed the idea of the UK as local government under the EU for 43 years. They really cannot envisage at all the concept of the UK leaving the EU, and prior to the Lisbon Treaty, which was signed into existence in December 2009, the only way the UK could do that was by repealing the ECA 1972. Perhaps more importantly, civil servants are past masters at creating jobs for themselves; at the last count it was reported that they had 500 Brexit “projects” going! Furthermore, of course, there a cries for thousands more civil servants on the job.

There is a written record of the Whitehall view which was published online after 10,000 signatures of an “original” ECA 1972 repeal e-petition, which was launched 3 months before the vote. There are three strands to this view:

  1. That the repeal would be a breach of international law
  2. that the only way of leaving the EU is via Article 50;
  3. and that repeal would antagonise our European partners.

This is why nobody in Whitehall is advising Westminster to do this repeal.

The Whitehall view is wrong. There is no principle of “entrenchment” in English law, and the Government can repeal any statute. This is always exclusively a matter of domestic law, and nothing to do with international law at all. It has always been possible to leave the EU by repealing ECA 1972; all that Article 50 does is to add a layer of EU bureaucracy on top of that. Finally, our “European partners” are already cheesed off by the popular UK vote to leave the EU, and are making hostile noises about it, most significantly from Herr Schäuble (German Finance Minister). The repeal would go virtually unnoticed, except by EU lawyers who would be horrified that the tables had been turned.

Turning now to the Westminster view, this is based on a terrible mistake about the effect of repealing the ECA 1972, viz that so to do would automatically repeal all the directives, regulations, treaties, statutes and statutory instruments that have been made pursuant to it over the last 43 years. That is false, the repeal repeals the statute only, and nothing else at all.

This false belief is evidenced by two matters of record. The one which is most widely known is the proposal for a Grand Repeal Bill after the end of the Article 50 process, something which does not make sense as a matter of law, and is the most extreme example of shutting the stable door after the horse has bolted (and indeed had time to circumnavigate the globe) that I have ever come across. The other was the 2.5 hour debate in Westminster Hall on 17 October, where everyone (with the possible exception of Mr Scott who summed up for the government at the end, spouting verbatim the Whitehall line) was clearly under the said mistaken apprehension. The true situation is that the UK would have the rest of earthly time to do whatever it wanted, whenever it wanted, with any of those rules.

The combined effect of these twin lies is to cripple the UK and jeopardise the entire Brexit process. Heads must be banged as a matter of urgency!

Finally, clearly some thought must be given to the mechanics of the thing.  The government has a majority of 13 and should employ a three line whip.  Potential rebels should be approached on the basis of democratic principles and having to answer to their constituencies. The DUP MPs can be relied on, as can the Labour Leave MPs (and indeed, it now seems, most of the PLP) and the UKIP MP. The whole House could be reminded that this simply gives effect to the majority vote in the referendum. The repeal would be by statutory instrument, which is easier to get through than a statute. The Lords would not present any intractable problem.

Repeal ECA 1972 NOW!


[Ed: ‘A Roving Reporter’ is a non-practising solicitor and ex-government lawyer.]

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