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The So-Called Great Repeal Bill

The European Union (Withdrawal) Bill was finally published on Thursday. 13th July. It’s a vital piece of legislation, but scarcely lives up to its billing. For one thing it doesn’t actually repeal the European Communities Act 1972 (ECA72). It merely makes provision for its repeal.

Clause 1, the ECA72 repeal provision, only comes into force when a minister so decides (clause 19(2)). That needs to go. Having made the huge mistake of using Article 50 when they could have saved the country at least £200 billion and used the Vienna Convention, they may as well repeal the ECA72 from the withdrawal date.

This may be a convenient moment to dispose of the myth that repeal of the ECA72 would bring us out of the EU. The ECA72 only operates on the municipal plane. It gives legal effect to community law within the jurisdiction, but has no legal effect outside it.

In order to withdraw from the EU we needed to use either Article 50 or the Vienna Convention. Since the withdrawal bill doesn’t actually withdraw us from the EU it is rather oddly named.

It couldn’t have been named the ‘Great Repeal Bill’ of course, as Parliamentary rules forbid the use of the word ‘great’ and rightly so. No end of crackpot schemes, from the NHS to climate change, have found their way onto the statute book. No doubt the egomaniacs behind each of those schemes would have wanted to call their bill ‘great’.

The next flaw in the bill, which was obviously drawn up by constitutional illiterates, is that clause 5(2) assumes that community law is supreme in the UK until EU withdrawal. That’s nonsense of course – community law could never be supreme here, as Parliament cannot bind its successors. The decisions which purported to decide the contrary were both wrong and not binding, indeed they are junk law, with respect, decided on political rather than legal grounds.

Since the draftsman was labouring under a delusion, with respect, clause 5(2) probably does not retrospectively validate the Factortame and Metric Martyr decisions. It’s unlikely that the courts will need to decide the matter, however, as nobody’s going to ask a court to ‘set aside’ a statute after Brexit Day.

For the avoidance of doubt, British judges cannot act as a court of appeal from Parliament. They have no power to set aside an Act of Parliament and any order purporting to do so is clearly bad. Without wishing to give offence to anyone holding the contrary view, the idea that Parliament can bind its successors is confined to pro-European cranks and judges, in so far as the latter category is wider than the former.

The third and most expensive error in the bill is the provision for multiple Henry VIII clauses. These reflect David Davis’s obsession with transposing community law into British law after Brexit. Why? Excessive EU regulations are enormously expensive, costing between £75 and 100 billion a year.

The Davis plan simply burdens the British economy with no upside. Part of the problem is that both Theresa May and David Davis are house-trained, no offence intended. They have bought into the official trade figures with the EU 27, which are a joke. They both probably also believe that the EU is the world’s largest free trade area.

In fact only about 7% of British businesses export to the EU27, and a fair percentage of those export only to the Republic of Ireland. Only about 30% of our exports go to the EU26, not counting Ireland, and that trade is at a massive deficit. Davis and May both want tariff-free access to the single market and are willing to carry on imposing a huge regulatory burden on the British economy in order to get it.

The world’s largest free trade area, by far, is NAFTA, of course.

What is needed is rational cost-benefit analysis. Tariff-free access to the single market isn’t in our economic interest, because Europeans buy so few of our goods and services. Our manufacturers, especially the car industry, would gain from import substitution as mutual tariffs kick in.

Happily the EU won’t agree tariff-free access without continued labour dumping, so we are likely to get a clean break after all. Tony Blair’s desperate attempt to get EU leaders to agree to limits on free movement is too little, too late. The time for concessions of that sort was when David Cameron was trying to negotiate a new deal. It was Blair’s agreement to uncontrolled labour dumping from Eastern Europe which helped undermine public support for membership, of course.

There are encouraging signs that the Henry VIII clauses will be voted down in the House of Lords by a coalition of Euronutters. Great. If the Henry VIII powers go, so too does the crazy plan to carry on burdening the British economy with pointless EU regulations, many of which are not enforced over in Europe.

The bill says nothing about community aliens and rightly so. There is a pointless provision in clause 9 about implementing a withdrawal agreement. If it reaches the statute book, which it probably will, it will be one of those constitutional curiosities – a statutory provision without purpose or meaning. Section 9, if enacted, would simply become redundant.

This is the answer of course to those Remoaners who are banging on about there being a Parliamentary majority for a ‘soft Brexit’, whatever that may mean. The key votes have already taken place, sanctioning both the referendum itself and Brexit, after that silly Supreme Court decision, no disrespect intended. There’s unlikely to be a vote on an agreement, as there’s unlikely to be an agreement to vote on!

The position of community aliens will be dealt with under separate legislation. Very few of their rights are covered by EU legislation having direct effect, which is why we have the domestic EEA Regulations. The EU’s demands are so outlandish (e.g. permanent ECJ jurisdiction over them) that there are unlikely to be reciprocal arrangements. This should save us another £60 billion or so a year, indeed perhaps more, as pension payments flowing out of the UK to pensioners abroad would be spent here.

Generous arrangements are all very well, but it’s the unemployed and the taxpayer who will foot the bill. The withdrawal bill should get through both houses, but may lose the Henry VIII clauses along the way, as there won’t be enough time to use the Parliament Acts.

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About Michael Shrimpton (35 Articles)
Michael Shrimpton is a prominent Eurosceptic, having advised the Maastricht rebels. He is a former Chairman of the Bruges Group and former National Committee member of the Campaign for an Independent Britain. He defected to the Tory Party in 1997, mainly on the issue of Europe. As a barrister he led the defence of the Metric Martyrs. His major intelligence text Spyhunter: The Secret History of German Intelligence was published by June Press in 2014. He has written on European matters for The Times and Eurofacts.

17 Comments on The So-Called Great Repeal Bill

  1. Michael Shrimpton // July 18, 2017 at 9:57 am // Reply

    Apologies for the typos! That should be ‘mad’ and ‘pear’ of course! No pun intended re ‘blowing up in their faces’.

    “Doing a Grenfell” has now entered the lexicon of the Intelligence Community.

  2. Michael Shrimpton // July 18, 2017 at 9:54 am // Reply

    You’re not made flyer, but they’ve gone down the terrorism route rather than military intervention. ISIS is controlled from the covert DVD’s HQ in Dachau. The 2-year period in Article 50 was probably based on the DVD’s estimate of the time they would need to destabilise any government committed to withdrawal.

    The German plan has gone per-shaped however. Their man Masood failed to assassinate Theresa May in the House of Commons as planned. The 2nd terrorist at Manchester Arena was spotted and the only IED which did explode went off in the foyer, not the arena itself, probably because the terrorist was in a panic and only thought he was arming his TATP device, not detonating it.

    ISIS then managed to blow up a tower block in west London, causing some 2-300 casualties, when some TATP being stored in a fridge-freezer cooked off.

    The plan to bring in a Labour/Lib Dem/SNP coalition committed to withdrawal blew up in their faces, when the DUP came to the rescue. The dementia tax came out of the Treasury and was supported by Hammond, Ben Gummer and the Cabinet Office.

    • Well, they say a week is a long time in politics, god knows what the next eighteen months or so will be like.

      The EU may change tack, the DUP alliance is shaky and Theresa May has a target on her back or wherever, as for ISIS I dread to think.

      2018 I think will be an interesting year, I’ve got a feeling Janet Yellen will before leaving office succeed in bringing the world economy crashing down on Trump’s and everybody elses head. What a volatile and explosive concoction.

      I don’t know if my nerves can take much more, I wish I could hibernate until 2019 and hope that when I wake up we’ll be out of the EU.

    • Interesting, I have been wondering about the contents of that fridge.

  3. Michael,

    Thank you; I have long believed that the so-called negotiations will go nowhere unless “our” representatives capitulate and effectively keep us in the EU.

    As for the Great Repeal Bill they have had time to do the job properly and examine all the EU laws and regulations, most of which I expect could be binned to our advantage. I can see that we will be lumbered with their equivalents now for ever unless we get a truly British government in place of the present lot.

  4. Michael – I hope you’re right, no deal and walk away would be the safest option.

    The more I look at the BREXIT situation these days as it becomes more messy, the more it starts to remind me of the Ukraine.

    As I’ve posted elsewhere, the only hope the EU has to survive is by ever closer political uniion to become a superstate. The EU will never sell closer political union to Britain that has voted to leave, they can only achieve this by repression.

    Alarm bells started to ring when Blair got involved. I’m waiting for the excuse to allow EUROGENDFOR on to our streets.

    You may think I’m mad, but I have this horrible feeling.

    Are we the next Ukraine?

    • As far as I am aware military cooperation with the EU is continuing on the sly as I wrote in my article on defence some months ago.

      They will not give up their dreams easily; truly Cicero’s “enemy within”.

    • Flyer. The same feeling is arising in me. It is essential that the government do not get their excuse to call for overseas help. That would be a ‘hard to recover from’ move down the slippery slope to loss of democracy etc. My concern about street activity and confronting Islam is that it would create widespread social unrest and provide the government with the excuse it needs.
      I think UKIP should focus on directly confronting the government and mount a massive information campaign directed at the public.
      While the democratic route remains available UKIP is our best option. Even without MPs they can influence policy. The tories will change policy to shore up their support. The EU referendum showed that the people can be won over by a patriotic message.
      For us on here the most useful contribution is to have a thorough debate on the leadership candidates. To enable us ti make an informed decision on our next leader.
      For me it is about ‘character’. Policies are less important. UKIP had a good set of policies at the last election but it made little impact. We need a fearless fighter as leader. It seems to me that AMW has the most fighting spirit.

      • Maximus – I reckon you’re right there. The reason I’m not quite as vociferous as some against Islam is because they’re just opportunists, it was sour government that let them in and failed in their duty to protect our borders.

        Muslims are Muslims, we all know that they’re an alien culture to us, yet our government sold us out. Our government are the problem, the problem of Islam is just a symptom of their treason and betrayal.

        “Confront the governmnt,” with you all the way on that one Maximus.

        • Yes Flyer.
          I am encouraged that AMW recently said it is now time to shift our focus to the failings of the ruling class and government and get the message across that they all need replacing. This is good leadership.

  5. Michael Shrimpton // July 17, 2017 at 10:41 pm // Reply

    Thank you for your kind words Toby!

    Two issues from Alan: (1) The ECA does NOT put their law above ours, as it couldn’t, as the government confirmed to both houses in order to get the legislation through.

    The ECA only made PRE-72 legislation subject to community law. It couldn’t possibly affect future legislation, as that would be impliedly repeal it.

    (2) Of course we can make trade deals now. The EU and Germany rightly fear a US/UK free trade deal, and are running the rubbish argument that we cannot negotiate such a deal now. Nothing in the EU treaties prevents a departing state from NEGOTIATING replacement arrangements, provided that they do not ENTER INTO FORCE before the departure date.

  6. Toby Micklethwait // July 17, 2017 at 6:49 pm // Reply

    Dear Michael Shrimpton,

    Thank you for your erudite contribution to this website.

    Regards, Toby, 01932-873557

  7. Re ECA 72, am I correct in thinking that it puts their law over the UK’s.?
    Which if repealed now would mean trade deals could be made now, rather than talked about?
    I’m just wondering what actually prevents the UK from moving on to new pastures, while negotiating settlements with the old.

    • Howard Keating // July 18, 2017 at 8:54 am // Reply

      Alan, if it answers your question, I believe the actually repeal will not take effect until the day we leave. So existing rules should apply until then.

      However, as you know, the EU has a history of ignoring the rules every time it suits them; so why shouldn’t we?

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