The government has not just “set in stone” the repeal of the European Communities Act

“I have signed the legislation setting in stone the repeal of the European Communities Act 1972. This is a landmark moment in taking back control of our law. It underlines that we are leaving the EU on October 31.”

Steve Barclay MP, 18 August 2019

Yesterday Steve Barclay, the Secretary of State for Exiting the European Union, tweeted a photo of himself signing a document, which he described as “setting in stone the repeal of the European Communities Act” and underlining “that we are leaving the EU on October 31”. 

 But is this a “landmark moment” as Mr Barclay suggests?

Not really. The signing of the document in question does not make it any more certain that the European Communities Act will be repealed in the UK, nor that we will leave the EU on 31 October 2019.

It does not guarantee the repeal of the European Communities Act

Mark Elliot, Professor of Public Law at the University of Cambridge, explained that Mr Barclay has brought into force Section 1 of the European Union (Withdrawal) Act 2018.

This states: “The European Communities Act 1972 is repealed on exit day.”

This is not new legislation. The EU (Withdrawal) Act was passed by Theresa May’s government, and sets out how areas of law currently covered by the EU will function in the UK after Brexit: this will largely involve copying existing EU law into UK law.

Mr Barclay was putting this section of the Act into force as the date of Brexit approaches. As the Hansard Society puts it: “The fact that s.1 of EU(W)A 2018 is now in force does *not* mean that the repeal of the European Communities Act 1972 has now happened.”

Professor Elliot also states that the legal significance of this is extremely limited.

“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.”

Parliament had this potential power before Sunday, and it continues to have it following Mr Barclay’s signature. Professor Elliot goes on: “European Communities Act repeal, and Brexit itself, are no more “set in stone” today than they were in the spring”.

It does not underline that we are leaving on 31 October

Mr Barclay also stated that his signature “underlines that we are leaving the EU on October 31.”

The section which he brought into force yesterday states that the European Communities Act is repealed “on exit day”, which is currently set for 31 October 2019.

Yet Professor Elliot points out that “other provisions… enable the definition of “exit day” to be amended if the date of the UK’s departure from the EU changes under EU Law.”

So if the date of Brexit were to be delayed (as has already happened twice this year), the date of the repeal of the European Communities Act would be pushed back accordingly.