Thanks to Graham Smith for pushing me into writing this one. So we will have Brexit. It’s easy – we just repeal the European Communities Act and it’s done. Well, maybe it isn’t that easy. A couple of examples to work through.
I looked at recent legislation created in the UK, and I picked 2016 No. 932 as a random example. In case you didn’t know this is The Air Navigation (Restriction of Flying) (Wales Rally GB) Regulations 2016. These are regulations preventing low level flying over the Welsh Rally. Obviously nothing to do with Europe – so a good example of something that should be unaffected by Brexit. If you look at the start of the Regulations you will see it says:
The Secretary of State makes the following Regulations in exercise of the powers conferred by article 239 of the Air Navigation Order 2016
This is the power that allows the minister to create the legislation. So now we go back to The Air Navigation Order 2016 (2016 No. 765) which says at the start:
This Order is made in exercise of the powers conferred by sections 60 (other than sub-section (3)(r)), 61, 77 and 101 of, and Schedule 13 to, the Civil Aviation Act 1982(1), section 35 of the Airports Act 1986(2) and section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972(3).
This Order makes provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to Her Majesty that it is expedient for certain references to provisions of EU instruments to be construed as references to those provisions as amended from time to time.
So the obvious question is, if you repeal the European Communities Act does this pull down the Air Navigation Order and does this pull down the restriction on flying over the Welsh Rally? The answer is it depends – if article 239 of the Air Navigation Order depends on the European Communities Act then there might be a problem. So in order to work this out we need somebody to go through the 244 pages to work out what parts of the ANO are supported by the European Communities Act.
In my view the low level flying will still be banned, and I think a sensible drafter could draft the repeal act to leave in power any subsidiary legislation. But hang on – that means all of this EU legislation we are trying to get rid of will stay in place unless we name it one by one.
One of the problems we have had with recent legislation is the one in two out idea – so for every new piece of legislation you need to get rid of two old ones. As a result the drafters of legislation have put three or four completely different ideas into one new piece of legislation, creating a spider web of interconnected legislation. The number of pieces of legislation should have reduced – but the result is much harder to deconstruct (and actually the number of pieces of legislation have not really reduced in my view).
So to repeal the European Community Act and the “nasty” European rules we will need to review tens of thousand documents to decide what to keep and what to get rid of. Sure we could do the second part later – a sort of long grass Brexit – but that means we will need to follow updates made in Europe with no input to those changes – the worst of both worlds.
The second example is shown in the second para from the Air Navigation Order. The automatic updating of legislation “from time to time” is a really powerful tool and it is in the European Communities Act. Some international safety legislation is reviewed regularly and updated, perhaps as often as every two years. Making new legislation to refer to the new updates can take over a year. So the European Communities Act introduced the power to make perambulator references (automatic updates). There are reasons why this only exists for European legislation – it has to do with the power of parliament. And no replacement Act is likely to include this automatic update.
What this means for items that have already been updated will be a long legal discussion – probably years. The other thing it means is that legislation will need to be ready to manually update these references starting the day after the European Communities Act is revoked. Remember – preparing this legislation can take more than a year. But we have about two years to complete Brexit, so we should have time.
In the UK we have this concept that parliament – the representatives of the people – are the ultimate authority. Nobody can introduce legislation or tax without their approval. For parliament to review the number of pieces of legislation that will need to be amended to leave Europe within such a short period is beyond imagination. So what will we do?
The suggestion I have heard is that parliament will be asked to delegate the power to amend legislation to the government. Some people think government and parliament are the same thing – but far from it. Government is the Prime Minister and the cabinet. It isn’t the back benchers, it isn’t the opposition, it isn’t the Lords. This is something that must never be allowed to happen.
Look out for my next post “What is the European Union”.