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European Communities Act 1972 and secondary legislation

European Communities Act 1972 and secondary legislation

Postby iobject » Thu Jun 30, 2016 10:10 am

EU Directives are often transposed into UK law by secondary legislation through the powers granted to the government by the European Communities Act 1972 (section 2(2)).

Some commentators suggest that the repeal of the Act will not only mean that the government lose the powers granted, but also that the whole existing corpus of secondary legislation cease to have effect.

Now, I am quite ignorant in those matters but it is far from obvious to me that losing a power to legislate automatically invalidates legislation passed pursuant to that power.

What do you think?
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Re: European Communities Act 1972 and secondary legislation

Postby atticus » Thu Jun 30, 2016 10:56 am

I think that whatever legislation is passed will be very much more sophisticated. It will be long. It will be detailed. It will repeal some things, amend some, and preserve some. The Brexit Act 2018 will probably be one of the longest statutes ever.
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Re: European Communities Act 1972 and secondary legislation

Postby iobject » Thu Jun 30, 2016 11:01 am

Do you think that, in itself, a repeal of the European Communities Act 1972 would invalidate all existing secondary legislation passed pursuant the powers under section 2?
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Re: European Communities Act 1972 and secondary legislation

Postby atticus » Thu Jun 30, 2016 11:02 am

See above. A simple repeal is unlikely.
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Re: European Communities Act 1972 and secondary legislation

Postby iobject » Thu Jun 30, 2016 11:05 am

atticus wrote:See above


Is that a 'no'?
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Re: European Communities Act 1972 and secondary legislation

Postby atticus » Thu Jun 30, 2016 1:59 pm

Repeals only take effect from the date on which they come into force.

But, as said above, any Brexit legislation will be very much more sophisticated, so over simplistic questions are of no real world assistance. The legislation will reflect the outcome of the negotiation.
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Re: European Communities Act 1972 and secondary legislation

Postby iobject » Thu Jun 30, 2016 5:08 pm

I don't think this is a simplistic question.

It is likely that s.2 will be repealed. Even if this happens as part of a a wider legislation so that the impact will be diluted, the general point of my question remains.
Namely whether the repeal of the power to legislate through secondary legislation also automatically repeals all secondary legislation made through that power. I don't think that this is the case, but I have read the claim that it is, hence my question.
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Re: European Communities Act 1972 and secondary legislation

Postby dls » Thu Jun 30, 2016 6:30 pm

There is no difficulty in an Act saying (what may be unnecessary) that all such legislation remains valid - eg that the 1972 Act is only repealed to a certain extent.

It should be unnecessary to have long legislation.

The solution is to leave all EU law in place and effective, and then just to repeal stuff as time passes. It is stable and easy.
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