Chapter 2: Repeal of the European Communities Act 1972
7.Clause 1 of the Bill provides: “The European Communities Act 1972 is repealed on exit day.” As we noted in our interim report on the Bill:3
- The ECA provides for directly effective EU law, such as treaty provisions, regulations and decisions, to have effect in the UK without the need for further enactment. Thus, for instance, regulations adopted by the EU (to the extent that they comply with the requirements for direct effect) become effective and enforceable in the UK without the need for domestic transposition.
- The ECA provides the basis for the “supremacy” in the UK of directly effective EU law. Among other things, this enables UK courts to “disapply” Acts of the UK Parliament and to quash other legislation to the extent it is inconsistent with relevant EU law.
- The ECA provides a legal basis for implementing EU law to the extent that this is necessary. For instance, most EU directives—which do not, in the same way as regulations, decisions and some treaty provisions, have direct effect—have been implemented using the delegated law-making powers conferred by the ECA.
8.It follows that repealing the ECA will have three principal effects:
- Directly effective EU law will no longer have effect in the UK, because the ECA will no longer authorise it to do so. Although, even without repeal of the ECA, directly effective EU law would cease to have effect in the UK on exit, because the ECA provides for the direct effect of EU law in the UK only to the extent that the UK’s treaty obligations so require. Post-exit, no such obligations will persist (subject to the terms of any withdrawal or transitional agreement between the EU and the UK).
- Directly effective EU law will no longer have primacy over UK law—both because there will be no EU law capable of having primacy and because, in any event, domestic accommodation of primacy will cease on repeal of the ECA.
- The legal basis on which UK secondary legislation has been made so as to implement EU directives will be removed, rendering such secondary legislation invalid.4
9.If these three things were to occur immediately on the UK’s exit from the EU, legal chaos would result. The remainder of the Bill is therefore devoted to attempting to ameliorate the consequences that would otherwise follow from the repeal of the ECA. The Bill does so by preserving EU-derived domestic legislation and domesticating directly effective EU law, while assigning broad executive powers for the purpose of amending such law. None of these things, however, can happen until “exit day”.
Exit day
10.In our interim report we raised concerns that the Bill contained no express provisions to constrain the scope of ministerial discretion to define “exit day” or that otherwise set criteria by which exit day was to be determined. We also noted that the Bill did not require that ministers prescribe exit day and the power to define exit day was exercisable by statutory instrument not subject to parliamentary procedure. We concluded that the power was “unduly broad in its scope and flexibility” and left open the possibility that ministers might provide through regulations that exit day meant one thing for one purpose and something else for another purpose.5
11.The Government subsequently decided to stipulate exit day in the Bill. Steve Baker MP, Parliamentary Under Secretary of State at the Department for Exiting the European Union, told us “We wish to put into the Bill the reality under international treaty law of our exit day, which is as announced, and to give people clarity that there is one exit day and that it is 29 March 2019.”6
12.Sir Keir Starmer QC MP, Shadow Secretary of State for Exiting the European Union, criticised the idea of fixing exit day in this way:
“the proposal to stipulate exit day is really problematic. We have gone from an overly broad position … where exit day is not determined, not necessarily overseen and could be on different days, to a position where it is absolutely fixed for all purposes. It has swung completely to the other side, and that is a mistake. The leave date is clear from the provision of Article 50. The exit date gets mixed up with the leave date, but the exit date serves a different purpose; it tells you when things have to happen in our domestic law for this whole exercise to work.”7
He added that it “unnecessarily constrains the flexibility the Prime Minister might need in the latter stage of the negotiations.”8
13.The Public Law Project suggested that “in the interests of legal certainty, ‘exit day’ should be defined as ‘the day on which the UK ceases to be subject to the EU Treaties.’ This would allow sufficient flexibility for there to be a transition period while also enhancing legal certainty and appropriately limiting the period for which Ministers may exercise the extensive delegated powers contained in the Bill.”9
14.The Bill was subsequently amended in the Commons to define exit day as 11pm on 29 March 2019, while giving ministers the power to amend that definition “if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different.”10
15.The revised definition of “exit day” in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between “exit day” as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK.
3 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), paras 15–17
4 Although EU law would still have a residual effect under the Interpretation Act 1978, section 16.
5 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 21
8 Ibid.
10 Clause 14 (1–5)