To those in the legal profession, Lord Denning’s reputation is in gentle decline. To literary critics, however, he remains one of the greats. Here is what he wrote, back in 1974, about European law:
“The Treaty [of Rome] does not touch any of the matters which concern solely England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”
The legal sluice gate, if you like, that parliament opened to allow European law in is the European Communities Act 1972. It is that Act which means (in domestic law, anyway) that we are part of the European Union.
And that is the Act which must be repealed if we are to leave the EU. And that job of repealing will be done by the European Union (Withdrawal) Bill published earlier today.
Its very first clause says: “The European Communities Act 1972 is repealed on exit day.”
A splendid starting point: we shall throw off the shackles of the ghastly Executive.
But then the detail—there’s always the detail—buried at the back. Section 14(1) says that “‘exit day’ means such day as a Minister of the Crown may by regulations appoint.” So a Minister of the Crown can choose.
Now. When important stuff gets done by regulations the government usually recognises that parliament should have control over those regulations. And, sometimes, the European Union (Withdrawal) Bill does. For example, if, in planning our departure from the EU we forget about some dusty bit of legislation that once made reference to an EU institution, and a Minister of the Crown wanted to put that right with a regulation, she would have to put a copy of her regulation before both Houses of Parliament and both Houses would have to approve it.
But not all the time. Because, on the date of our departure from the EU, the government proposes that there be no parliamentary control at all.
What happens if a…