On Sunday Theresa May announced that a ‘Great Repeal Bill’, repealing the European Communities Act 1972 and providing for EU law to be translated into UK law post-Brexit, would be included in the 2017 Queen’s speech. Mark Elliott offers some preliminary thoughts on what this will mean in practice. He writes that it is likely that the legislation will seek to confer upon ministers substantial powers to carry out the process of deciding which aspects of domesticated EU law are to be retained, which are to be amended and which are to excised from UK law altogether. This fits with the overarching message from the speeches on Brexit at the Conservative conference – that the government is committed to an executive-led withdrawal process, and is unprepared to tolerate interference in that process by either parliament or the devolved institutions.
‘Brexit means Brexit’ was only ever going to cut it for so long. And although, in her first speech to a Conservative Party conference as Prime Minister, Theresa May has repeated that well-worn phrase, she has evidently come to the view that Eurosceptics – or Brexiteers, as we must now call then – now require more by way of red meat. Such nourishment was, on the face of it, supplied in abundance in May’s speech – by way not only of the announcement that the government plans to trigger the Article 50 withdrawal process by the end of March 2017, but also by means of signalling that the next Queen’s speech will include a ‘Great Repeal Bill’. Since the primary object of the proposed ‘great repeal’ is the European Communities Act 1972 (ECA) itself – the bête noire of the Europhobic right – the announcement of the new bill is undoubtedly a clever piece of political theatre, the aim being to satisfy those who have grown weary, not to say sceptical, of May’s tautological mantra. But does the announcement of the Great Repeal Bill amount to anything more than this?
Announcing the repeal of the ECA is doubtless a sensible tactical move by the Prime Minister given the demands she faces from her right-wing. The ECA gives not only effect to EU law in the UK, but also priority to EU law over UK law – including over acts of parliament. Focusing on the proposal to repeal the ECA fits very neatly with the narrative developed by the Prime Minister in her speech about making the UK a ‘fully-independent, sovereign country’. Or, as David Davis put it in his speech , repealing the ECA will deliver ‘what people voted for: power and authority residing once again with the sovereign institutions of our own country’.
There are, however, two caveats that make the announcement of the ECA’s repeal far less legally significant than might at first be assumed. On the one hand, although the Great Repeal Act (as it will by then have become) will be on the statute book before Brexit day, it will not take effect and repeal the ECA until Brexit day. This announcement does not, therefore, amount to the sort of immediate, shock-and-awe ECA repeal that was floated by some on Brexit’s extreme fringes. That was a suggestion that was never likely to be implemented, given that it would have placed the UK in breach of its EU treaty obligations pre-Brexit. On the other hand, however, repealing the ECA upon Brexit is hardly a big deal. Indeed, a natural assumption would be that the ECA would inevitably be repealed upon Brexit, given that it would make no sense, after leaving the EU, to retain legislation providing for EU law’s effect and priority in the UK. However, we can in fact go further and say that repealing the ECA post-Brexit is legally unnecessary, and will in fact amount to nothing more than a tidying-up exercise. That is so because the ECA only gives effect and priority to such EU laws as are, at any given point in time, binding upon the UK thanks to its EU treaty obligations. Post-Brexit, the UK will have no such obligations, and the ECA will therefore give effect and priority to no EU law whatever.