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Here's David Allen Green's piece in today's FT:
Assessing Theresa May’s two announcements about Brexit
David Allen Green
| Oct 03 11:14 | 18 comments | Share
Theresa May addresses the Conservative party conference
Sunday was a good day for Leave campaigners, perhaps the best day they have had since the referendum result.
The announcement of two things by the UK prime minister Theresa May at the Conservative party conference brought good cheer to the Brexiters. On social media and elsewhere there was triumphalism — even gloating — as it seemed more real than before that Brexit is going to happen.
The first thing we were told is that there will be a “Great Repeal Bill” in the next Queen’s Speech, expected next April. This will repeal the European Communities Act 1972 as and when the UK leaves the European Union. EU law will be placed on a UK law basis and will then be repealed as and when appropriate.
This looks more impressive than it is, at least in respect of the possibility of any Brexit. There has never been any doubt that leaving the EU would require the repeal or at least substantial amendment of the 1972 legislation, as well as other statutes implementing EU law. There could be no other way of having Brexit. This has been openly stated by Brexit minister David Davis and his predecessor Oliver Letwin before select committees.
What Mrs May has said, in large part, is that the repeal or substantial amendment of the 1972 Act means the repeal or substantial amendment of the 1972 Act. Adding “Great” to the title of this inevitable legislation is mere spin.
But there is something to be concerned about in this announcement. The government is seeking to have what it calls “flexibility” in being able to amend or repeal primary legislation — Acts of Parliament — by statutory instruments. These are through the so-called “Henry VIII clauses” that enable the executive to make huge legal changes with little or no parliamentary scrutiny. Statutory instruments, a form of secondary legislation, are devices by which the government can legislate without troubling the legislature. Such legal means have been roundly criticised by judges such as Lord Judge, the former Lord Chief Justice.
So, under the cloak of the referendum result there will be a power grab by Whitehall from Westminster. Those rejoicing at “taking back control” should be careful what they wish for. The executive is, as usual, wanting to take control away from parliament.
The second thing is perhaps more important for Brexit. Mrs May announced a deadline for invoking Article 50. This will be done, she said, before the end of March next year. Unless there is some agreement to extend time, this would mean that the UK would cease to be a member of the EU by 2019. For many, this meant Brexit suddenly looked real. There are now actual dates.
But again, there is little new about this. Only a couple of weeks ago, Mrs May told the European council president Donald Tusk that the Article 50 notification would be sent in January or February next year. If anything, yesterday’s announcement shows there has been slippage of a month in just a fortnight.
That said, an announcement of a deadline to party conference is about as high-profile an announcement as a political leader can make. Comments about Article 50 timings to a foreign leader such as Mr Tusk may not get widely noticed but a conference speech will not be forgotten. If the March 2017 deadline is not complied with, there can only be adverse political consequences.
Neither of the announcements are any thing other than words, even if the words appear significant. And neither of them addresses the numerous serious and complex issues of making a Brexit work in practice. The government has done little so far to grapple with the problems of Brexit. The obstacles and the hurdles all still remain. What we learnt on Sunday was that regardless of the severe difficulties of making Brexit work, the government is minded to go ahead and do it anyway, and at speed.
David Allen Green, a lawyer and journalist, writes the FT’s law and policy blog. He has been commissioned by Oxford University Press to write a book on Brexit.