the legislation by which Parliament enabled law made by the European Union (EU) to apply within the United Kingdom. In the Miller judgment, adopting an analysis by Professor Finnis, the Supreme Court referred to the ECA as the 'conduit pipe' by which EU law is introduced into UK domestic law (para 65) and - "So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law."
Clause 1 will remove EU law from its position as a source of domestic law. Removing the ECA will necessitate dealing with the vast amount of law which has emanated from the EU and flowed into the UK via the "conduit pipe." Unless this is done, there would be a legal vacuum in numerous areas.
The ECA will be repealed on "exit day." One might be forgiven for thinking that, as things currently stand, this is to be 29th March 2019. That is, the end of the 2 year period referred to in Article 50 of the Treaty on European Union. It may not be so simple! Let's turn to Clause 14(1) where we are told that:
Professor Mark Elliott has noted that, among other things, this means that the domestic legal switch can be flicked at the appropriate time, and that any alteration to the anticipated schedule can readily be accommodated - Public Law for Everyone - The EU Withdrawal Bill - Initial thoughts.
A couple of points about Clause 14(1):
1) Schedule 7 paragraph 16 that - "Any power of a Minister of the Crown under this Act to appoint a day includes a power to appoint a time on that day if the Minister considers it appropriate to do so."
Returning to Clause 14 we see that Clause 14(2) says: In this Act - (a) where a Minister of the Crown appoints a time as well as a day as exit day (see paragraph 16 of Schedule 7), references to before, after or on that day, or to beginning with that day, are accordingly to be read as references to before, after or at that time on that day or (as the case maybe) to beginning with that time on that day, and (b) where a Minister of the Crown does not appoint a time as well as a day as exit day, the reference to exit day in section 1 is to be read as a reference to the beginning of that day.
The importance of "Exit Day"
"Exit day" is used throughout the Bill. To take just one example, Clause 2(1) states: "EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day."
Reference back to Exit Day may continue for many years adding complexity to the law. This will require some sort of record of the state of EU-derived domestic legislation on Exit Day and the record will be a baseline for the UK until things are changed by use of the extensive powers granted by the Bill to enable changes to be made. The Bill contains provision for such a record to be made - see Schedule 5 dealing with Publication of retained direct EU legislation etc.
A number of provisions in the Bill deal extensively with what Regulations may do and these will apply when a Minister makes regulations appointing Exit Day.
Government Fact Sheets - Information about the Repeal Bill