65.Sir David explained that, as the UK Parliament was a constitutional organ of the United Kingdom, it was “for the United Kingdom to determine what part the UK Parliament plays in this and what degree of say Parliament has over the acceptability or non-acceptability of the agreement.”
66.Professor Wyatt told us that the future trading agreement would be “one of the most important trading arrangements that the UK had made for many years, or would be making for many years.” The credibility of that agreement would depend on cross-party consensus within Parliament: “The fact of that might encourage Parliament to be more flexible about the relationship between Parliament and the Executive in the negotiation of a treaty than it would normally be.” He thought a political argument could be made “for a high degree of parliamentary involvement in the withdrawal process. The process and the direction of future UK relations with the EU would be of great practical and political importance to the people of the UK.”
67.Sir David envisaged that a great deal more than repealing the European Communities Act 1972 would be required to give effect to withdrawal in national law. The Government “would need to enact in law everything that it wanted to keep in law, which is currently either the consequence of the direct effect of the EU Treaties or, for example, the product of a Directive.” Under current law, national courts have to interpret implementing legislation in light of the Directive:
“If the Directive no longer applies, the Government will have to consider, ‘Do I have enough in the existing legislation for the courts to proceed without looking at the Directive, or am I to instruct the courts to construe it in the light of the Directive as if the Directive applied?’ There are many nitty-gritty legal complications; it is more than simply repealing the 1972 Act.”
68.Professor Wyatt largely agreed. The Government would clearly have to amend the European Communities Act 1972 so that sections 2 and 3 ceased to give effect to directly applicable EU law adopted after the date of UK withdrawal. But he warned against assuming that the UK would wish to repeal all existing EU implementing legislation. Some directly applicable and non-directly applicable rules would no doubt be repealed as soon as the UK withdrew from the EU, but the rest could be left in force until reviewed, and either maintained, or repealed. He noted that EU legislation was not “legislation that is imposed upon us.” Part of the way that UK governments had successively exercised their policies had been through the machinery of the European Union:
“If we look at legislation on equality in the workplace or on the environment, or we look at our company law, these are not all alien mechanisms to our detriment that have been forced upon us. Many of them are pieces of legislation that are regarded as currently important and still receive strong support.”
69.He concluded that it would take “years for Government and Parliament properly to review the corpus of EU law, jettison what was not wanted and keep what would be wanted—in my view, the majority.”
70.We asked Sir David whether he thought the Scottish Parliament would have to give its consent to measures extinguishing the application of EU law in Scotland. He noted that such measures would entail amendment of section 29 of the Scotland Act 1998, which binds the Scottish Parliament to act in a manner compatible with EU law, and he therefore believed that the Scottish Parliament’s consent would be required. He could envisage certain political advantages being drawn from not giving consent.
71.We note that the European Communities Act is also entrenched in the devolution settlements of Wales and Northern Ireland. Though we have taken no evidence on this specific point, we have no reason to believe that the requirement for legislative consent for its repeal would not apply to all the devolved nations.
72.Should the UK decide to withdraw from the EU, the UK Parliament should have enhanced oversight of the negotiations on the withdrawal and the new relationship, beyond existing ratification procedures. We will consider how best to achieve that, should the need arise.
75 International treaties are laid before Parliament, usually for a period of 21 days, before they can be ratified (see Constitutional Reform and Governance Act 2010,
76 Supplementary written evidence from Prof Derrick Wyatt QC ()
79 Supplementary written evidence from Prof Derrick Wyatt QC ()
83 (“You would have to have legislative consent from the Scottish Parliament”).