European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Hudnall and Lord Pannick

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Pannick]

My Lords, Amendment 21 is in my name and those of the noble and learned Lords, Lord Goldsmith and Lord Wallace of Tankerness, and the noble Viscount, Lord Hailsham. It concerns the powers of courts and tribunals to have regard to judgments of the European Court of Justice in Luxembourg handed down on or after exit day.

When we debated this topic in Committee, there was widespread agreement that Clause 6(2) needed to be amended to give clear guidance to the judiciary. I and other noble Lords have had many meetings and discussions with the noble and learned Lord, Lord Keen, and with the Solicitor-General. I thank them on my behalf and that of the noble and learned Lord, Lord Judge, who cannot be present for this debate, for the care with which they have considered this important topic. I am very pleased that the Government have tabled Amendments 23, 24 and 25, which I think will remove the main concerns about Clause 6(2). Government Amendment 24 removes the opening words of the existing Clause 6(2), which suggested a default position of the court or tribunal not having regard to judgments or decisions given on or after exit day. Amendment 25 removes the requirement that courts or tribunals should ask themselves whether it is appropriate to have regard to judgments or decisions given on or after exit day. The amendment rightly states that the criterion is whether the court or tribunal considers the material relevant to the matter before the court. I am content with government Amendments 23, 24 and 25, subject to four points on which I would welcome assurances from the Minister.

First, Amendment 23 introduces new opening words for Clause 6(2) which make the subsection subject to Clause 6(1) and (3). Some concern has been expressed that these opening words somehow negate the substance of Clause 6(2). I do not believe that is so, but it is the Minister’s view that matters. Can he therefore please confirm that those opening words are intended simply to reinforce the duty of the court or tribunal on or after exit day to follow the detailed requirements in Clause 6(3) and to reinforce the duty under Clause 6(1) to interpret and apply retained EU law without being bound by anything decided in Brussels or Luxembourg on or after exit day, by contrast with what the courts have sometimes suggested is the obligation to follow the case law of the European Court of Human Rights under the Human Rights Act? But—this is the important point—the new opening words are not intended to affect the power of the court or tribunal, given by the substance of Clause 6(2), to have regard to judgments and other decisions in Luxembourg and Brussels given on or after exit day when domestic courts and tribunals interpret retained EU law.

Secondly, Clause 6(2) refers only to,

“anything done on or after exit day”.

Anything done before exit day will of course be part of retained EU law, subject to the limits stated in the Bill. However, it is possible to think of cases where a judgment of the European court given before exit day is relevant to the issue before the domestic court, even though that judgment is not part of retained EU law. Let us suppose, for example, that Parliament enacts new legislation on medicinal products to replace the existing law. If there is a dispute about the meaning of a section of that statute, the court may consider relevant a decision of the European court given last year on similar requirements.

It is also easy to envisage cases where a judgment of the European court handed down on or after exit day may be relevant to an issue in our courts which is not an issue about the interpretation of retained EU law. I therefore ask the Minister to confirm that Clause 6(2) is not intended to prevent a court or tribunal having regard to decisions of the European court handed down before or after exit day in cases not concerned with the interpretation of retained EU law, just as our courts may consider it relevant to have regard to a judgment of the Supreme Court of Canada or the High Court of Australia.

Thirdly, your Lordships’ Constitution Committee recommended in paragraph 142 of our report that Clause 6 should state that in deciding what weight to give to judgments or decisions of the European court or other European bodies given on or after exit day, our courts and tribunals should be able to take into account the terms of any agreement between the UK and the EU that the court or tribunal considers relevant. I moved an amendment to that effect in Committee. I see nothing in Clause 6 to prevent courts or tribunals taking such material into account if they consider it relevant to the issue before them. Does the Minister agree and will he confirm that this would be a matter for the judgment of the court or tribunal?

Fourthly and finally, the Minister knows that the attention given to the wording of Clause 6(2) has in part been because of concern to protect the judiciary against criticism that it is making a policy choice if and when it decides to have regard to judgments of the European court on or after exit day. The Supreme Court will also have to make judgments under Clause 6(3) as to whether to depart from judgments of the European court which are part of retained EU law. After the abuse directed at the Divisional Court following its judgment in the Gina Miller case in November 2016—I declare my interest in the case, not in the abuse—the noble and learned Lord, Lord Keen, was clear and forceful in his speedy defence of the independence of the judiciary, unlike the then Lord Chancellor. Can the Minister assure the House that when judges exercise their powers under Clause 6, the Lord Chancellor will see it as his role to defend the independence of the judiciary against any repetition of such abuse? I beg to move.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should inform the House that if either Amendment 21 or Amendment 22 is agreed to, I cannot call Amendments 23, 24 and 25 for reasons of pre-emption.

European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Hudnall and Lord Pannick

Wednesday 21st March 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, at the risk of the noble Lord, Lord Liddle, thinking that I am adding to the soporific legalese, I support what he said. It is not just the noble Lord who is concerned about Clause 17. Your Lordships’ Constitution Committee addressed Clause 17 at paragraph 206 of its report on the Bill:

“We agree that the Government may require a power to make ‘transitional, transitory and saving provisions’. However, we are concerned that the Bill creates a power to make ‘consequential provisions’ which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make ‘consequential provisions’ to alter other enactments. We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.


The concern is that this Bill will confer enormous powers on Ministers under, for example, Clauses 7 and 9 to make delegated legislation. It is difficult, in the context of such powers, however amended, to see why it is also necessary for Ministers to enjoy this broad power, as the noble Lord, Lord Liddle, described it, to make consequential provisions. The concern is that the restrictions that Parliament will impose on the other powers that Ministers will enjoy under Clauses 7 and 9 may be evaded by Ministers by the use of this consequential power.

I am particularly concerned about the risk of that, because if your Lordships focus on paragraph 17 of Schedule 7 to the Bill, on page 51, you see a quite extraordinary provision, which states the following:

“The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act”.


Therefore, it seems to me, as a matter of law, that the fact that we spend hours—it seems like days—looking at particular provisions as we seek to restrict the power that Ministers will enjoy under Clause 7 will have no effect, by reason of paragraph 17 of Schedule 7, on the scope of the power that Ministers also enjoy under Clause 17.

I would welcome some reassurance from the Government that they are thinking about the Constitution Committee’s recommendation. I would welcome some explanation of why Ministers need these consequential powers to make delegated legislation and some assurance from the Minister that he is thinking about whether it is also necessary to include paragraph 17 of Schedule 7, or whether the Bill could make it absolutely clear that any power in Clause 17 must be interpreted consistently with the restrictions that will be contained elsewhere in the Bill.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, with apologies to the Committee, I should have made it clear when the noble Lord, Lord Liddle, moved his amendment that, if it is agreed to, I cannot call Amendments 253 to 256, by reasons of pre-emption.