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Analysis

A ‘pipe’ will let EU law flow into the UK

by Nick Kent | 26.10.2019

Once upon a time, Brexit was about taking back control and restoring Parliamentary sovereignty. Then Leave won the referendum and things were turned upside down.

Buried in the 102-page memorandum on “delegated powers” in Boris Johnson’s Withdrawal Agreement Bill (WAB) are some shocking revelations about how the promise of taking back control has been betrayed. In particular, it notes how the WAB provides what it calls a “conduit pipe” for some EU laws to flow directly into UK law.

Deciphering what is happening requires trawling through the memorandum, the WAB, the Prime Minister’s Withdrawal Agreement and his revised Northern Ireland protocol. No wonder Johnson wanted to give MPs only three days to scrutinise the documents. Fortunately, he was stopped.

How the pipe works

The Withdrawal Agreement says: “The provisions of this Agreement… shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.” (Article 4, paragraph 1).

The WAB achieves this by copying the “pipe” from the 1972 European Communities Act, which took us into the forerunner of the EU in the first place. The memorandum explains how the WAB “authorises a process by which, without any further primary legislation, EU law becomes a direct source of domestic law”. It adds that “inconsistent or incompatible domestic law must ‘give way’ in favour of that provided for in the Agreements where there is a clash.” (Paragraphs 20-24).

The ability of EU law to have a “direct effect” in the UK without Parliament having an effective veto is what some Brexiters hate most about EU membership. But, as a member, we sit at the table making the laws that flow through the pipe. Post-Brexit, we’ll have no vote on them. While Parliament could in theory override EU laws (as it can now), the memorandum notes that “the UK takes its international legal obligations seriously” and “it is not anticipated that it would seek to repeal or amend the legislation giving effect to the Agreements”.

Vassal status for GB during transition and NI forever

Now it’s true that the pipe will only be used for rights, liabilities and so forth that relate to the Withdrawal Agreement. But if the EU makes new laws during the transition period, the agreement says that most will flow through the pipe: “Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period” (Article 127). 

Although the transition is currently scheduled to last until the end of next year, it can be extended for two years. So that’s one-to-three years of vassal status for the whole UK.

What’s more, the pipe will be used in Northern Ireland for some new laws the EU makes even after the transition period. The Northern Ireland protocol says: “Where this Protocol makes reference to a Union act, that reference shall be read as referring to that Union act as amended or replaced.” (Article 13 (3)).

EU customs arrangements are, for example, routinely updated. The memorandum explains that the WAB ensures that “any such updates will be able to take effect without the need for further domestic legislation”. (Paragraph 23). 

The DUP is furious that Johnson’s deal turns Northern Ireland into an EU colony. But the hardline Tory Brexiters in the ERG are strangely silent about how the Prime Minister is selling us into vassalage. Will they rediscover their principles?

An accompanying piece explains how Johnson is attempting with the WAB a power grab worthy of Henry VIII.

The headline and excerpt were updated on December 3

Edited by Hugo Dixon

4 Responses to “A ‘pipe’ will let EU law flow into the UK”

  • I can think of no EU laws which are so draconian as to make INFACTS throw up its hands in horror. In fact, the more EU laws the better, because they are usually more sensible than the homegrown alternatives. And stop using “vassal state” so much – that was Moggs phrase and it is simplistic nonsense. The EU is not a dictatorship – if it was, we wouldn’t be allowed to leave.

    Who’s side is INFACTS on, anyway, we need to STOP this rubbish and repeal Article 50, not think up better ways of leaving. Any more articles like this and I’m removing it from my email.

  • Take back control sounds great, but who is taking back control? Not the public, not the voters. It is the likes of Johnson and Gove.

    Scotland understands this all too well, and trusts the EU to protect their interests far more than Westminster.

  • Dear Nick
    Like most articles very good and informative. However for many pro-remain punters they need also summaries about Brexit, explanations which are short and succint, and basically inform them in a straightforward manner. I ‘ll give you an example. I have not yet read from a journalist the following:
    Option 1: Boris Johnson Brexit deal:
    (A) No option to keep Northern Ireland in the UK. High risk of destroying the Good Friday Agreement and the restart of sectarian civil war.
    (B) No option for a customs union. This means that goods are charged tariffs and become more expensive. Certain businesses will fail, others become uncompetitive and have to cease trading. The trade routes will slow down causing traffic jams and slow down the movement of trade.
    Etc etc

    Come on, please, just add a few articles doing these basics.

    Best wishes from a frustrated reader!!