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We appear to be on the verge of having a new source of law in the UK constitution, furthermore it is one that will transcend even Parliament.
Clause 29(1) of the European Union (Future Relationship) Bill provides: "Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in" the various agreements made between HMG and the EU (ie the Deal)
While clause 31 gives Ministers wide-ranging Henry VIII powers to implement the Deal in domestic law, this clause acts as a sort of 'sweeping up clause'. It alters the law of all 3 UK jurisdictions so that everything must be compatible with the Deal.
Laws will have to be interpreted in a way which is compatible with the Deal. If that can't be done, then it seems that the law is not valid. That law is, arguably, impliedly repealed by this clause.
This is similar to the effect that section 2(1) of the European Communities Act 1972 had on law in the UK, one of the profoundly traumatic aspects of EU membership for fans of UK 'sovereignty'
Or as Lord Denning put it: "The Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back".
Clause 31 wouldn't be so much of a problem if it were simply a 'cleaning up' exercise around (for instance) whether a particular statutory instrument relating to the export of processed cheese complied with customs requirements in the Deal. It goes beyond that, however.
it appears to extend to the whole of the Deal, which includes some very far-reaching high level governance arrangements. For instance, the power of the Partnership Council established under Article Inst 1 of the trade deal to amend the Deal
The logic of this is that this power of the Partnership Council (unelected - no one is sure yet how it will be made up, but it will include EU as well as UK representatives) will be part of UK law automatically, and that its changes to the Deal will become part of UK law
but these changes will not just be part of UK law, they will transcend incompatible UK law.
So much for restoring the sovereignty of Parliament.
So much for restoring the sovereignty of Parliament.
