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:
- That the repeal would be a breach of international law
- that the only way of leaving the EU is via Article 50;
- 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.]
The present government has a weakness .it is called the uk population .
Nigel Farage has stated with honesty and integrity what should be done to preserve justice in our country .a very straight forward person.
The twists and turns in the present government .the delays .ect will be etched in the memory of a vast number of voters .at this time no one can see the future and what damage has taken place within peoples minds .
The brexit vote gave voters throughout this country .a new freedom to express themselves .one must remember they have families to be responsible for .sons . daughters .who are the future of Briton .
and in the distant future their children .
The brexit vote was for them to .
I just wonder if government today quite realize the full implication of damage they are inflicting on the present and future generation of voters by the day to day dithering on putting into place article 50 .
The seventeen million plus Brexiteers expect a decisive, clean break divorce from the EU. I get the feeling that there is a lot of anger out there already, but I could be wrong. If I am right I think Mrs May is sitting on a pressure cooker and when it starts letting off steam she is going to get her posterior scalded. She had better get said posterior in gear and do something positive, ie repeal ECA 1972, and if she has a problem with their Lordships she should overwhelm them with an influx of new Brexit-leaning Lords – preferably UKIPPERS, but being a Remainiac it is not the outcome she wants. As someone else has said, these are interesting times but the way things are going I wonder if I will live long enough to see the outcome.
It’s a pity that the march planned for earlier this month was cancelled “because of fears the far-right would hijack it”. When only a few who hadn’t heard it was cancelled turned up, the media were able to say: “Look – very poor attendance,” and conveniently forgot to mention that most people knew it was off. I totally agree with David and DD – we must stop being the reserved British people we are and do a bit of demonstrating to get our views across.
Marches will be seized upon and supported. There was massive support on BB for the last one. But it needs to be led by UKIP who have a large database, and Geisela Stuart might help, forgotten its name but I belong to that group too, we need to all email all the groups we belong to and beg. I think we have to do something.
The problem with marching is that the left will counter demonstrate. Decent people who don’t fancy being involved in a punch up won’t attend, so it will probably end up with small numbers on our side resulting in the MSM being able to crow that support for Brexit is waning. The spreading of opinions and truthful information has brought people who oppose the Establishment together, and kept people safe. Keep up the good work on UKIP daily. We need an inspiring leader to follow. That will be the time to mobilise. Unfortunately I don’t think one is in sight at present. But it isn’t an impossibility that one could suddenly surface. Or so I keep telling myself.
Paul needs to step up the UKIP attack on establishment backsliding by adopting this as a rallying call. I was surprised to see him tweet last night that all EU citizens could stay in UK indefinitely. I voted to be able to control our borders and that means switching to a work permit system whereby those who we need can stay here on a permit, and those who we don’t need have to leave. We should not have a position that everyone who made it here before an arbitrary deadline has a lifetime right to stay. We need to reverse the tide, reduce the population and pressure on local services and house prices, not adopt a similar stance to LibLabCon! I hope this isn’t a sign that UKIP is trying to become more ‘acceptable’ because in doing so it will lose its purpose.
We need action not twittering and it would be useful to see hime comment on here and the UKIP website too…
The article sounds wonderful and so sensible. Sadly it will never happen because if May wanted to do it she would remove the ghastly Hammond. His statements yesterday says it all. We have come to a terrible situation in,which civil servants are being encouraged to frustrate the will of the people.
I fear that while Brexit was by no means a pointless exercise, because it gave courage to everyone in the West to stand up against the elite, the British will be mired in this mess until seismic changes take place elsewhere.
UKIP must keep saying that May has no intention of Brexit – put the knife in deep every time we get on air or in the papers. That is the only way forward. At the moment people believe her because they want to.
Dee, it would be interesting to see what the UKIP leadership thinks. So far they have been silent when they should be speaking out.
David, I went back to check Peter Whittle speaking on GMB yesterday. According to him, 78% of UKIP members think that “if they came here under EU regulations” they should stay. So there you have it. Our Leaders tweet confirms it. I didn’t get to vote, it is not my position. If you have a job we need you to do, and are contributing, you can stay is my position. But only as long as this is the case. I don’t believe most people who voted Brexit thought that they were voting for UKIP’s current policy either. But the damage is done now. So, perhaps the Leadership would be better NOT speaking out? I am in despair.
My children and growing up grandchildren will be pleased to know that their hopes of home ownership or at least paying a reasonable rent will be set back due to PNs backing of our over populated country. Still if we keep covering the green belt with packed together little boxes, they may find somewhere to live that doesn’t take a massive slice out of their pay packet before they retire. I wonder if PN has the same problem on his pay.
We do NOT need any more bloody ‘debates’ we just want what we voted for nothing more ,nothing less.
I absolutely agree; we just need to be 100% sure of our ground first otherwise we give ammunition to the enemy.
I would love it if we repealed the European Communities act, it would solve a lot of problems. What Theresa May has done since she came to power is a disgrace and has tuned Brexit into a farce, the trouble is it’s getting dangerous.
The contempt for democracy on both sides of the Atlantic is getting palpable. The Democrats and globalists in the US are still trying to undermine the election result, if they’re not careful, they’ll spark of a civil war and the American citizens are armed to the teeth. Once America goes, it’ll spread to here,a fight over Brexit and exploding racial tensions. The world is getting very polarised, globalists on the one hand and everybody else on the other and the fault lines run through the US, UK and Europe: this is turning into something very nasty.
Getting us out of the European Union as quickly as possible would be very wise. Unfortunately though, I don’t think that TPTB care how many people they hurt as long as they get their way: psychopaths.
I know it sounds wild, but we live in interesting times. There are things happening now that nobody would have believed even a couple of years ago.
Yes, but …
the Lords would be a problem because they’d vote against. Nothing that a half-decent government couldn’t deal with, and if it lead to their abolition, bring it on – but does help explain why this lot could never contemplate it. Also, failure to be sufficiently radical is an enduring British trait, regrettably.
More importantly, Labour MPs can’t be trusted – as no doubt the Government calculated.
In a true democracy this wouldn’t be an issue – the people have spoken, end of. The judges will now go and make it even worse. Sums us up for the nation of hypocrites that we are – or, more accurately, the Establishment – for all its dissimulation and addiction to power.
Interesting idea and one which I would support. However there seem to be conflicting views on this (for example Lawyers for Britain) which need to be debated.
But whatever the validity of this approach how do we force the government to comply other than by direct action?
David,
We need to go out on the streets en masse and shout it out loud and clear, demonstrate, demonstrate, demonstrate. They are not leaving us any other option!
DD I agree – how do we get it through to HQ?
Well Dee,
Why bother with them?
Donald,
I’m sure there are better ways to bring a government down without resorting to Cromwellian tactics but this is obviously not the place to have such a discussion.
David,
Would you like to give me your e-mail address and we can discuss this away from this site.
Regards Donald, (obviously this is not my real name but my e-mail address would be, that is why I do not print it. Would the same apply to you?)
By threatening the seats of the other parties, starting in May. At the moment they are convinced UIKIP is fading, until they believe otherwise we will be ignored. It’s very true that we should target Labour seats but we must not forget Tory ones either.