The Secretary of State for Exiting the European Union, Stephen Barclay MP, has dubbed the repeal of the European Communities Act 1972 as a “landmark moment”.
Declaring on twitter that he had “signed legislation setting in stone the repeal” of the Act, Mr Barclay went to posit that the move “underlines that we will leave the EU by Halloween.
“We are leaving the EU as promised on 31 October, whatever the circumstances – delivering the instructions given to us in 2016”.
Although legislation has already passed in parliament, the Secretary of State said it had to be signed off with a “commencement order” to repeal the European Communities Act (ECA) to prevent EU law taking precedence over British law after exit day.
But according to Mark Elliot, Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge, the assertion was “at best, misleading”.
According to the Professor, the “exit date” could still be changed or cancelled altogether.
“The order does not ‘set in stone’ the repeal of the ECA, because the legal meaning of ‘exit day’ can be changed and the date of the ECA’s repeal deferred.”
At present, “exit day” is defined by section 20(1) of the Act.
Bringing this provision into legal effect does not immediately repeal the ECA as suggested: rather, it only repeals in on exit day- which is defined by section 20(1) of the Act as 31 October.
Professor Elliot claims “other provisions in section 20 enable the definition of ‘exit day’ to be amended if the date of the UK’s departure from the EU changes under EU Law.”
“There is no legal reason why this could not happen”. Bringing section 1 of the EUWA into force makes “absolutely no difference at this point”, claims Elliot.
No more set in stone
He continues: “It does not prevent the UK government from seeking an Article 50 extension. It does not prevent parliament from legislating to require the UK government to seek an Article 50 extension.
“It does not prevent the European Council from granting an extension if the UK government asks for one, whether of its own volition or at parliament’s insistence.
“And it does not prevent parliament, if it so wishes, from legislating to revoke the UK’s notification under Article 50, thereby stopping the Brexit process in its tracks.”
The ECA repeal “like Brexit itself, are no more ‘set in stone’ today than they were in the spring, when ‘exit day’ was twice redefined in domestic law and the Article 50 period was twice extended as a matter of EU law”.