Sunday, 25 August 2019

Exit Day and repeal of ECA 1972

Exit Day 31 October:

On 10 April 2019 Prime Minister Theresa May secured an extension of "Exit Day" to 31 October 2019 - see Council Conclusions and Council Decision 10 April.  The Council Decision fixed "Exit Day" as a matter of EU law.

The definition of "Exit Day" in the European Union (Withdrawal) Act 2018 s.20 was duly amended by the European Union (Withdrawal) (Exit Day) (Amendment) (No2) Regulations 2019  to 31 October 2019 at 11 pm.  This brought UK domestic law into alignment with the position in EU law.

Under
the original version of the European Union (Withdrawal) Act 2018, regulations to alter Exit Day required affirmative resolution of both Houses of Parliament.  But under section 2 of the European Union (Withdrawal) Act 2019 the parliamentary procedure for amending the definition of Exit Day became the weaker control of "annulment in pursuance of a resolution of either House."

Repeal of the European Communities Act 1972:

The European Union (Withdrawal) Act 2018 section 1 simply states:  "The European Communities Act 1972 is repealed on exit day."

Section 1 was only brought into force on 17 August 2019 under the European Union (Withdrawal) Act 2018 (Commencement No 4) Regulations 2019.

The making of this Regulation was trumpeted by government - Secretary of State signs order to scrap 1972 Brussels Act ending all EU law in the UK.  The headline is misleading because the actual legal position is that the 1972 continues in force until Exit Day (currently 31 October at 11 pm) and it remains possible for the definition of Exit Day to be amended again.  Professor Mark Elliott explained the position in some detail on his Public Law for Everyone blog - HERE.

Summary:


In brief, "Exit Day" is currently 11 pm on 31 October as a matter of both EU and UK law.  The European Communities Act 1972 will be repealed on Exit Day BUT it is possible to alter Exit Day if, say, a further extension were to be agreed with the EU.

Prime Minister's meetings:

The Prime Minister met with the Chancellor Angela Merkel and President Macron - The Guardian 21 August and BBC 22 August.  The meetings considered the "backstop" provision in the draft Withdrawal Agreement which remains on the table albeit the House of Commons has rejected it.  At the time of writing it continues to be unlikely that the EU will agree to removing the "backstop" from the agreement but, although time is short, it continues to be open to the UK to put forward constructive proposals.

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