Silly demos notwithstanding, on 26th June 2018 Her Britannic Majesty Queen Elizabeth II graciously granted Royal Assent to the European Union (Withdrawal) Bill. Upon receipt of Royal Assent the bill became law.
The Queen-in-Parliament Assembled is the highest form of law-making authority known to our law. To the extent that the Act contravenes EU treaty-based law the latter gives way.
After exit day (29th March 2019) EU law ceases to have effect in the UK, save to the extent provided for in the Act. By reason of s.1 the hated European Communities Act 1972, the single most despised statute in all of our long constitutional history, finally goes where it belongs, into the dustbin of history. There it will join the Nuremberg Laws and the Witchcraft Act.
The repeal of the ECA72 is a significant achievement. Many thought the great day would never arrive, but it is now only months away. The Withdrawal Act is overly complex and deeply flawed, reflecting the May government’s disreputable strategy of ensuring that Brexit does not mean Brexit, by staying closely aligned to the EU. It therefore seeks to retain the existing body of EU law, the acquis communautaire, but how much of the acquis is retained is entirely a matter us.
Put shortly, the act creates a mechanism for retaining EU law. It does not oblige us to retain it. Given the vast cost of EU regulations – at least £75 billion a year – this is just as well. Whilst ‘Appeaser Theresa’ may wish to strangle the British economy in EU red tape and help German exporters, it may not be her call, given the vulnerability of her position.
The Act does not oblige us to accept a deal with the EU. It’s always been clear that the EU would drive a hard bargain, with the begging bowl out, in order to deter other states from leaving. Although the pro-EU element in Parliament tried to tie the government’s hands they failed.
If the Anglo-European talks collapse all that the Act obliges the government to do is to make a statement, which they would have done anyway. Parliament does not get a veto on leaving without a deal.
If there’s a deal then Parliament can reject it. That was always likely to be the case, since a deal would most likely require fresh legislation. As I have observed on these pages before the pro-EU element may have scored an own goal here, indeed the ultimate score-line could read like the South Korea – Germany match.
By definition, a deal would require EU acceptance. Since there is no deal they would accept which we would want, any deal is going to be a bad one. It would be hugely expensive and would leave our industries without tariff protection from predatory German exporters.
Brexiteers in Parliament would get the chance to torpedo the deal in the same way that HMS Conqueror torpedoed the General Belgrano. The government may end up bouncing around the South Atlantic in life rafts. Labour could well vote against a deal for tactical reasons, or because they want a better deal. If that happened it would only require a small number of rebels to defeat the government, in which case the deal is toast.
Tony Blair is panicking for a reason. Even though he’s a Remoaner and a former Prime Minister, he’s not completely stupid, with respect. With Parliament having rejected the options of EEA membership and a customs union he can see the UK making a clean break from Europe. Great. The negotiations have been a farce from the beginning, with civil servants effectively reporting to Brussels negotiating with EU officials doing likewise. It’s been the biggest carve-up since Thanksgiving.
Whilst the Act refers to Northern Ireland, it does not require a soft border with the Republic, which has been a German client-state since its formation. If we leave without a deal there will be a hard border, at the very least for immigration checks. The UK and the EU will have very different visa regimes, indeed it is quite likely that the Eastern European EU member states will revert to visa status. That is to say Eastern Europeans would need a visa to come here.
Nothing in the Act obliges the UK to maintain freedom of movement after exit day. UK-EU immigration flows have always favoured the EU. UK workers in the EU are mostly skilled and add value, whilst EU immigrants to the UK are mostly unskilled or semi-skilled and displace British workers onto the dole queue, at a cost to the exchequer of roughly £50 billion a year.
What the Act does not do is take us out of the EU. Acts of Parliament are internal measures and usually only operate inside the UK and her territorial waters. The mechanism by which we are leaving the EU is Article 50, which operates on what we lawyers call “the international plane”. That’s not an Airbus, as the media seem to think. Treaties operate internationally, statutes operate domestically.
Of course, since Parliament can do what it likes, it can break international law, as it did with the notorious s.72 of the Sexual Offences Act 2003, which provided for extraterritorial prosecutions. (As it happens I am seeking to limit the operation of s.72 as part of the collateral attack on my dodgy IIOC conviction, listed for hearing before the Bar Disciplinary Tribunal from 19th till the 21st September.)
I am writing this from behind enemy lines. (I promise not to talk if I am captured!) As I explained this morning to my charming European host, we British like Europe but we don’t want to be in it. We love America but we don’t want to be the 51st state or have peanut butter on our sandwiches. The Europeans don’t really like us and certainly don’t understand us. After over 45 years of EU membership Johnny European still has not grasped the importance of marmalade for breakfast.