Theresa May has set Britain on course to leave the EU by 2019 in her first major speech on Brexit, saying that the UK would become a ‘fully independent, sovereign’ country.

In the clearest sign yet that the prime minister wants a clean break from Europe’s single market, she told the Tory party’s annual conference that Britain would insist on taking full control of immigration and refuse to accept the jurisdiction of the Court of Justice of the European Union (CJEU), which gives direct effect to EU law in Britain, but crucially said that all existing EU laws would be transposed into domestic legislation.

May went on to say that this would give some certainty to business and also promised that any future rewriting of existing EU laws would not see any weakening of employment protection in Britain, tacitly acknowledging at least, how important EU law has been in this area.

Taking back Control?
‘Brexit means Brexit’ is now a well-worn phrase, that has little, or conversely monumental significance, depending on your political inclination. The conference speech was an attempt to satisfy those demanding to get on with Brexit, by the ‘hard’ route if possible. The next Queen’s Speech will apparently include a ‘Great Repeal Bill’. Its primary purpose will be to repeal the European Communities Act 1972 (ECA), delivering in David Davies’ words ‘what people voted for: power and authority residing once again with the sovereign institutions of our own country’.

The desire for our sovereign institutions to once again be the seat of all divine power does not seem to include subjecting a non-binding vote in June to any Parliamentary vote or scrutiny, nor to any oversight by the UK courts. May has been highly dismissive of both. The Prime Minister, for instance, suggested that those arguing that Parliament should have a say in triggering Article 50 ‘are not standing up for democracy, they’re trying to subvert it’. She also backtracked on previous statements suggesting a conciliatory approach with devolved institutions, arguing that we will ‘never allow divisive nationalists to undermine the precious Union between the four nations of our United Kingdom’

What is the ECA 1972?
The ECA gives not only effect to EU law in the UK, but also primacy to EU law over UK law including over Acts of Parliament. ‘Primacy’ means that in the event of a conflict between EU law and the laws of a member state it is EU law which needs to be respected. Conflicting national law must be ‘disapplied’. This is the Court’s instruction to courts in the member states dealing with EU law issues.

‘Primacy’ is a conflict rule. It does not establish an overall ‘supremacy’ of EU law. It is also worth pointing out that in terms of how often the conflict rule has been used in respect of UK law, I would personally struggle to come up with even a handful of cases where EU law has prevailed over primary legislation enacted by the UK Parliament during the course of the UK’s 40 year EU membership.

What about the Great Repeal Act?

It will only take effect on Brexit day, since any implementation pre Brexit would place the UK in breach of its EU Treaty obligations. Once the UK has brexited, the UK would no longer have any EU treaty obligations, and so the ECA would be entirely redundant by then anyway.

Though the Great Repeal Act will repeal the ECA, it will not, and is not designed, to rid the UK of EU law. This is because the Government has finally cottoned on to the fact, and accepted what everyone was telling them before the June vote, that to try and get rid of four decades of EU law would be a monumental, if not impossible, task. So what the Great Repeal Bill will do is preserve EU law in ‘aspic’, before converting the despised laws of the EU into wonderful British laws overnight on Brexit day, when the Bill will presumably become an Act of Parliament.

After the Bill has been enacted we will then see a filtering process, the Government identifying which laws they want to keep, amend or discard. Human rights enthusiasts are likely to be left disappointed, but so will the Brexiteers. This is because the UK will still have to take account of Brussels and Luxembourg (where the CJEU sits) and carry on adjusting and amending the ‘repatriated EU Law’, in line with any changes of interpretation the EU institutions decide to make to its rules and case law, absent of course of any future UK influence or input. The Great Repeal Act would then become simply a mechanism for incorporating (albeit under the guise of being British) new rules emanating from the EU.

Finally there has already been fears expressed by members of the House of Lords, including Helena Kennedy, about how this process will be carried out. A number of senior Tories have already hinted that the process could be done largely by executive means. This will allow Ministers, rather than Parliament, to repeal or amend domesticated EU legislation, ironically marginalising ‘the mother of all Parliaments’ even further in the Brexit process.


First appeared on Justice Gap here