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.