Professor debunks Brexit secretary's claims he has ordered the repealing of the European Communities Act

PUBLISHED: 16:32 18 August 2019 | UPDATED: 16:46 19 August 2019

Stephen Barclay claims he has 'set in stone' the repeal of the European Communities Act 1972. Photograph: Twitter.

Stephen Barclay claims he has 'set in stone' the repeal of the European Communities Act 1972. Photograph: Twitter.

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To little fanfare the government's Brexit secretary claimed that a 'landmark' moment had been passed which sets 'in stone the repeal of the European Communities Act 1972'.

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Minister Steve Barclay was pictured posing for a photo showing the moment he signed the regulation into law, proudly declaring: "We are leaving the EU as promised on 31 October, whatever the circumstances - delivering on the instructions given to us in 2016."

While the legislation had already passed in parliament last June, the minister said it had to be signed off using a "commencement order" to repeal the European Communities Act (ECA) to "ensure" EU law stops taking precedence over British law after the EU exit day.

He wrote: "This is a landmark moment in taking back control of our law. It underlines that we are leaving the EU on October 31."

But Mark Elliott, a professor of public law and chair of the faculty of law at the University of Cambridge, said the announcement was "at best, misleading".

He said the "exit date" in law still could be changed or cancelled altogether and down played the significance.

He wrote the order "does not 'set in stone' the repeal of the ECA, because the legal meaning of 'exit day' can be changed and the date of the ECA's repeal deferred."

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He continued: "It does not prevent the UK government from seeking an Article 50 extension. It does not prevent parliament from legislating to require the UK government to seek an Article 50 extension. It does not prevent the European Council from granting an extension if the UK government asks for one, whether of its own volition or at parliament's insistence. And 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."

He added that the ECA repeal "like Brexit itself, are no more 'set in stone' today than they were in the spring, when 'exit day' was twice redefined in domestic law and the Article 50 period was twice extended as a matter of EU law."

Labour MP Stephen Doughty also disagreed with the relevance of Barclay's stunt.

He told Sky News: "I do not believe [Brexit] is inevitable.

"I think it's only right that the British people should have a say in that.

"They now know what this particular prime minister wants to do, which is crash out with no-deal."

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