JT: Understanding Steve Barclay’s ”Commencement Order”

LAW THAT TRIGGERS BREXIT ABOUT TO BE SIGNED!
Posted by Jeff Taylor | Aug 17, 2019 | The News

So, the PM, Boris Johnson, has ordered the Brexit Secretary, Steve Barclay, to sign a law next week that will take us out of the EU, but what is it and what does it really mean?

A lot has been made of the decision by the Prime Minister, Boris Johnson, to tell the Brexit secretary, Steve Barclay, to sign a law in the next few days that, it is said, will trigger Brexit.

The new chair of the European Research Group (ERG), Steve Baker, who took over from Jacob Rees-Mogg when the Moggster became the Leader of the House, said:

“It is absolutely totemic. It shows a transformation in the approach, that Boris Johnson is willing to leave on a fixed date with no question of extension.

“It’s the do-or-die pledge in black and white. It’s not merely symbolic. Once it’s signed that’s it, the UK is leaving.”

And the news has some on social media hoping that somehow Brexit will be delivered next week once this piece of paper has been signed off.

So, I did a bit of digging and found out that what the minister will be signing is a type of statutory instrument called a ‘commencement order’.

And, as far as I can see, it won’t take us out of the EU on its own next week.

I had a gander around the interweb and couldn’t find that much info on these things, not even a book you could buy. So I relied on the dot gov and think-tank websites for what little I could glean – so apologies if the following is not 100% accurate, but I think the overall gist is about right.

Anyway, when an Act of Parliament is given Royal Assent, unless otherwise stated in the Act itself, it would come fully into force at midnight on the day it was given Royal Assent.

But within the text of many acts of parliament, especially the longer and more complex ones that cover a wide range of policy areas, there is a section called ‘Commencement’.

Within that commencement section, will be instructions on when certain parts of the Act become effective in law. And that would either be on a later stated date, or when a commencement order has been issued by a minister.

As an example, certain sections of the Data Protection Act 2018, only became effective a few days ago when the relevant commencement order was signed.

And one archived document I read said:

“…the Easter Act 1928 (which stipulates a fixed date for Easter) has not yet had a commencement order made, though it is open to the Home Secretary to make one if general agreement on fixing a date is reached.”

Now, the Withdrawal Act 2018 also has a commencement section – section 25.

Section 25 clearly states which parts of the Withdrawal Act came into force at the point of Royal Assent, but the rest, and I quote:

“The provisions of this Act, so far as they are not brought into force by subsections (1) to (3), come into force on such day as a Minister of the Crown may by regulations appoint; and different days may be appointed for different purposes.”

Now, one such part that requires a commencement order is section one, which states:

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

And that is the bit that would free the UK from the shackles of EU membership, as it is the European Communities Act, or ECA, 1972 that ties us to it.

Now I’ll read it again and emphasise the important bit:

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

Now, that section one is not yet in force, so if today was Brexit Day, the ECA 1972 would remain in force because the commencement order to make section one effective hasn’t been signed yet.

Conversely, if that commencement order was signed today, section one would would come into force, but because it is not yet exit day, the 31st of October 2019, then the ECA 1972 would remain in force.

So, what I’m saying is that this new commencement order would not bring forward the day of our exit from the EU one second. It merely breathes legal life into a part of the Withdrawal Act – the part that repeals the ECA 1972 when exit day is reached.

Further, as far as I can see, it also does not prevent the government negotiating another Article 50 extension. So the statement by Steve Baker I read earlier about, once it’s signed that’s it no extensions, I’m not sure is completely true in legal terms.

It would also not prevent the revocation of the Article 50 letter so reversing Brexit, if the pro-EU MPs got their way.

So, in my eyes this is really just a political statement by Boris. ‘Look’ he’s saying, ‘Theresa May didn’t do this, but I am’. And I disagree with Steve Baker, it is not that much more than being merely symbolic.

But one thing it does have the potential to do, is set the trigger for our early exit, if for some reason Brexit Day was somehow legally brought forward from the 31st of October.

To do this, there would have to be a reason in domestic and international law that says Brexit Day is, let’s say for the sake of argument, Friday the 23rd of August – next week.

Let’s just pretend that Boris Johnson signed a consent order on Monday to drop the defence to the Robin Tilbrook case – something I talked about in a previous video, and after all the fall-out it was decided that the real exit date was the day it was all cleared through the courts, say that was next Friday.

And let’s also pretend that, in the meantime on the Tuesday the Brexit secretary had already signed the commencement order for section one of the Withdrawal Act to become effective as from the Thursday, the day before this new mythical Brexit Day.

All that would be left to do, I think, would be for the government to lay a negative statutory instrument before both houses of parliament amending the exit day as stated in section 20 of the Withdrawal Act from the 31st of October to the 23rd of August and, bob’s your uncle, we’re out!

And none of the above would need any vote by MPs or Peers to achieve it, neither could they block it.

In fact, for Brexiteers that last part would be the delicious bit.

Because, in their desire to stop Brexit, if I remember rightly, MPs voted to make it easier to amend and delay the date of Exit Day in the Withdrawal Act by changing the type of statutory instrument required to do it, from a positive one requiring a vote in both Houses of Parliament to agree to it, to a negative one that just happens.

If they hadn’t done that, then this sort of scenario would not I think be possible.

Anyway, this is all just hopeful pie in the sky stuff. And I only go through all this convolution to indicate how it works – as far as I can make out that is.

Sources:

Law that triggers Brexit about to be signed!

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