Why the PM will have to repeal her own EU Withdrawal Bill

Theresa May's plans for Britain's withdrawal from the EU face ongoing challenges. Credit: PA

Just when I thought the government’s approach to Brexit could not be any more complicated and Byzantine (that is a euphemism), I am disabused of any notion that there has been a collective outbreak of rationality.

Here is the latest madness.

Do you remember that EU leaving date the PM wants to put into British law via her own amendment to the Withdrawal Act - which was her political gesture to prove to the more ardently Brexiteering Tories that we really really are leaving?

As you will recall it was widely derided as pointless because Article 50 of the EU Treaty already means we are leaving at the end of March 2019, whatever British law says.

But the amendment turns out to have created quite a thorny problem for her - because her advisers either didn’t notice or failed to point out that if parliament passes her amendment, the European Court of Justice could have no role in the UK after 11pm on 29 March 2019, in that the Withdrawal Bill explicitly says the ECJ has no jurisdiction after what it calls the leaving date.

The point is that in the original draft of the bill the actual date and time of leaving was not specified. And that was deliberate, to give maximum negotiating flexibility to the PM - which she has decided to thanklessly reject.

Now if you are a Brexiteering ultra you will of course say hooray to that.

But if you are the British PM you may well turn white and say “oh gawd, what have I done?”

The thing is she knows that a sensible Brexit - in fact the Brexit she will be requesting - at that summit in December - requires a role, even multiple roles, for the ECJ after March 2019.

Britain's deadline for leaving the EU is the end of March 2019. Credit: PA

For starters, the two-year transition or “implementation” period that has such totemic significance for British business will require the ECJ to continue to hold sway in the UK till at least 2021.

And as you will recall, I’ve been reporting for a week that the UK’s proffered deal on the rights of EU migrants in Britain would allow our Supreme Court to refer the most tricky cases to the ECJ.

Or to put it another way, if she gets the deal she wants at the summit in a couple of weeks, and she also gets her leaving date agreed by Parliament, then she would have to repeal her own EU withdrawal deal before March 2019 - if she intends to honour next month’s putative divorce deal.

Yes I know this sounds utterly crazy. But parliament is current tearing itself apart over a bill that the PM may find in just a few days that she needs to repeal.

Aaaaaaaaargh. As all good constitutionalists are wont to say.