Thread by @AdamJTucker

A thread on "exit day"

In summary - there will be a big mess if the SI changing exit day isn't made; but it isn't the mess people seem widely to be expecting

The legal position is this:

Brexit day is, for now, 12 April (it might be extended further)
Exit day is, for now, still 29 March (the gvt has the power to align it with Brexit day)

.@ProfMarkElliott has explained the distinction here: publiclawforeveryone.com/2019/03/23/ext…

tl;dr Brexit day is when the UK leaves the EU. Exit day is a trigger date, set in the EU Withdrawal Act, when a collection of domestic legal changes come into force.

@ProfMarkElliott The two dates ought to be aligned - the legal changes to be triggered on exit day are designed to accommodate into domestic law the UK's departure from the EU.

But they are out of sync, and will remain that way unless/until an SI is made to modify exit day to match Brexit day.

@ProfMarkElliott If that doesn't happen, how big a mess results depends on what domestic legal changes are set to be triggered when we reach exit day.

So let's see what changes might happen prematurely.

@ProfMarkElliott The headline changes are set up in the Withdrawal Act itself, esp sections 1,2,3,6,8 and 9. Here's a summary (from @sweelengharris via @Brigid_Fowler)

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler If all that happened prematurely, we would be in a real mess. And I think that is the kind of mess people are anticipating if the gvt fails/omits to update the statutory definition of exit day.

But it's not going to happen:

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler Sections 1,2,3 and (the relevant bits of 6) are not yet in force. So those changes won't happen even if exit day isn't changed.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler A premature start to the 2-year countdown under s8 is clumsy, but really has no impact on reality. It would be tidied up within 2 years anyway.

And section 9 is in force, but it needs a Withdrawal Agreement to bite on and there isn't one. So it's triggering would be empty

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler So my interim conclusion:

None of the headline changes associated with exit day will bite, regardless of whether exit day is changed.

They are not part of the the mess we might end up in.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler Next, what about other, less high profile, changes due to be triggered by exit day?

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler As far as primary legislation goes, the repeal of (only) one Act will automatically be triggered on Friday as it stands: the EU Act 2011.

Despite its title, that Act is not a significant part of the machinery for accommodating EU membership in domestic law.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler (Its repeal might have a ramification I don't understand - provisions for EP elections were tacked onto the 2011 Act; they will therefore be repealed on exit day; if premature, this might mess up the EP elections if they are held; but they may have been updated elsewhere anyway).

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler So, my second interim conclusion (election uncertainty aside):

The only primary legislation at risk on exit day is the 2011 Act. The consequences of a premature repeal are probably not significant.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler OK - so what about beyond primary legislation? Here things do happen. And the things that happen will make a big legal mess. And I think this is the main mess that failing to change exit day will make.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler Exit day is the trigger for an enormous range of changes set out in statutory instruments which are in force and which specify exit date as the date when the substantive changes they make come into force.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler Honestly, the range of these changes is completely overwhelming. I can't begin to summarise them. I certainly don't understand them. They are easy enough to find (as @Brigid_Fowler said, search "exit day" on legislation.gov.uk). They are basically impossible to navigate.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler Moreover - the principle of supremacy will still be live on Friday and so they would be ultra vires and therefore void to the extent they conflict with EU law.

The mess is worsened because some of these changes will be void, others won't, and it's hard to tell them apart.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler Statutory intervention might work, and would (almost certainly) be required to cure this defect if Brexit happens quickly after Exit day. But that would really only be plausible in the event of no-deal Brexit on 12 April.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler So my main conclusion:

If exit day isn't changed, a serious rule of law problem awaits. It will become basically impossible to ascertain with any certainty the law across a huge swathe of policy areas.

@ProfMarkElliott @SweeLengHarris @Brigid_Fowler /ENDS

(A caveat: I found it really hard to navigate the material this thread is about. I might have missed stuff. If so, sorry. Correct me.)