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Theresa May will be told next month by the EU that she will have to legislate to extend Brussels’ powers in Britain during a two-year Brexit transition period, in a move likely to inflame tensions with Eurosceptic Tory MPs.
The prime minister is currently pushing a bill through the House of Commons to repeal the European Communities Act, legislation which Tory Eurosceptics regard as marking the totemic end of Brussels “rule” in Britain.
The 1972 ECA is the legislation that incorporated European law on to the British statute book and enshrined the rulings of the European Court of Justice into domestic law. The government’s EU withdrawal bill will repeal the act on March 29, 2019.
But Mrs May will be told at next month’s European Council that if she wants a transition deal “on current terms”, she will need to enact new legislation that will temporarily duplicate many of the powers she plans to repeal. Senior British officials accept this will be the case.
Nick Clegg, former deputy prime minister, said many Conservative MPs were “too busy barking at the moon” to notice that they would soon be asked to vote for a new law reinstating Brussels powers in Britain. “There’s no way a transition period could be agreed in a legal vacuum,” he said.
Mrs May hopes to secure a breakthrough in Brexit talks at next month’s council, with EU leaders agreeing that “sufficient progress” has been made to open talks on a future trade deal and a transition agreement.
But the legal issues surrounding the transition deal have received little attention and look destined to drag Mrs May into conflict with some Tory MPs who believed that “Brexit day” in 2019 would mark the end of Brussels powers in Britain.
The EU27 are preparing guidelines that will lay down detailed transition conditions, which Britain would need to enact in domestic legislation — a point that the UK has implicitly recognised.
These include the supremacy of the ECJ, the powers of the European Commission to enforce EU rules, and the direct effect of EU regulations adopted before and during the transitional period.
In a recent presentation to EU27 member states, the European Commission said a transition would involve the “same” obligations of a member state, from the common agricultural policy to the “automatic application in the UK of new EU rules”.
A looming question for negotiators is how to ensure that British assurances in any withdrawal agreement are legally watertight. One senior EU official said: “How do you apply the full obligations of EU membership on a third country? We have never done that before. So it is indeed something that has to be negotiated.”
Britain’s Department for Exiting the EU confirmed that the ECA would be repealed when Britain leaves the EU on March 29, 2019 but that legal arrangements for the transition would follow in a separate bill.
“The prime minister has set out our intention to seek a time-limited implementation period and we have announced the ‘withdrawal agreement and implementation bill’ which will enshrine this in domestic law. The exact terms of the implementation period are subject to the negotiations.”
David Jones, former Brexit minister, said that if a transition arrangement included a continuing role for the ECJ and “the continued flow of regulations from the EU” that would be a “problem for a lot of colleagues”.
Stephen Kinnock, Labour member of the Commons Brexit committee, said: “The transition period will be a carbon copy of the status quo, minus MEPs, a commissioner and a seat at the table at the Council. So much for taking back control.”