The Government could be forced to repeal and replace existing European Union legislation before it even starts the Brexit process, potentially severely delaying Britain’s EU exit, a Supreme Court judge has said.
In comments that will cause concern to Brexit supporters, Baroness Hale of Richmond also said that the June referendum was “not legally binding” and that a simple Act of Parliament authorising the government to begin the Brexit process could be open to a legal challenge.
The Times quotes the judge as saying: “The argument is that the European Communities Act 1972 grants rights to individuals and others which will be lost if the treaties cease to apply,” she said.
“Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a replacement for the 1972 act.”
Baroness Hale added: “What is meant by the exercise of the executive power of the state? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the state? We do not have a written constitution to tell us.”
The Supreme Court is due to rule on whether the government has to power to invoke Article 50 of the Lisbon Treaty to begin the process of leaving the EU, or whether it must first pass an Act of Parliament.
The British government argues that June’s EU referendum gives it a democratic mandate to trigger Article 50, but opponents scored a shock victory at the High Court earlier this month which ruled parliament must be consulted.
There are fears the process could be held up or even prevented altogether as pro-EU legislators table endless amendments in a big to frustrate Brexit.
The majority of MPs, plus most members of the House of Lords, backed remaining in the EU during the referendum campaign.