It is widely reported today that Theresa May intends to announce a Great Repeal Act, to be included in the Queen’s Speech, which would repeal the 1972 European Communities Act under which the United Kingdom gained membership of the European Union.
Inherent in May’s comment is a fundamental misconception about how EU legislation is applied in the UK. It is reported that the Bill will enshrine EU law into UK law, giving Parliament the power to amend that legislation later.
The problem is that there is no such thing as EU law in the UK. All EU legislation – apart from a very few technical regulations – is set out in domestic legislation. EU Directives are made at Member States, which are then required to transpose them into their own domestic law. Some member states simply copy out the wording of the Directive, but because UK law works on a different basis to that of most Member States, EU decisions have to be enacted through domestic legislation, usually in the form of a Statutory Instrument. Many of those Instruments are made under powers contained in the 1972 Act – its repeal would mean that there were no longer any powers to transpose future legislation, but would have no effect on existing regulation.
Given that this is absolutely fundamental to how EU decisions are given effect in the UK, how could Theresa May and David Davis get it so wrong? I think the clue lies in the political context – that of taking back control. There seems to be a determination to present EU legislation as the other, outside democratic control – when actually every single aspect of EU law has been put into effect by domestic legislation passed through Parliament. In other words, this statement is about political posturing, and the knowledge that most members of the public – and certainly the media – have never engaged with the realities of implementing EU Directives. It seems to me that it is all about sustaining a state of ignorance about how the institutions have worked.
This leaves aside other, more complex and detailed question. Much EU legislation applies to policy areas that are devolved in Wales, Scotland and Northern Ireland – how will these be handled? And if the UK is to retain access to the single membership, it will still be subject to EU decisions, in the same way that Switzerland and Norway are now. How will those be managed?
Party conferences are not places where the difficult details of policy are resolved. But, overall, it seems to me that the claim that Britain is “taking back control” by leaving the EU is based on a toxic combination of dishonesty and ignorance. May’s latest porposition seems to be a demonstration that the Government is determined to continue on that path.