European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Goldie

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Goldsmith]

My Lords, it is a pleasure to follow the noble Lord, Lord Beith. The Government have moved on this, and that is to be recognised and appreciated, but they could have moved further, as the noble Lord, Lord Beith, has made very clear. It is slightly paradoxical that, as he says, the Government’s concern not to appear to be making policy changes prevents them adopting an amendment which makes it clear that what the instrument is to do is not to make a policy change. Be that as it may, although I find it hard to believe that the Government and their advisers could not have come up with a form of words that indicated the technical nature of the change being made while not falling into the trap of appearing to make policy changes, we would not prevent that amendment being agreed.

I want to underline three points which I invite the Minister to comment on. First, the way that these Ministers’ statements are described makes it clear that it is the statement of the Minister that is required. She spoke on at least one occasion about the Government’s view that something should be done, and no doubt the Minister would not do something if it were not the Government’s view. However, it is an important and critical part of the statement obligations that the Minister in question should apply his or her mind to the issue. That is the point that the noble and learned Lord, Lord Wallace of Tankerness, rightly made in the earlier debate. Therefore, I would be grateful for her confirmation that it will be understood that, where Ministers are to make such a statement, they have a personal responsibility to be satisfied. That is the whole point of including those words—so that the House or another place has the confidence and assurance that the Minister has focused on the issue and determined that the conditions are satisfied.

The second point I want to underline is that acceptance of these amendments does not in any way undermine the importance of the amendments that the House has already agreed in relation to the “appropriate” and “necessary” distinction. That requirement will remain, and the fact that the Minister’s statement may be expressed in different terms does not undermine it in any way. It will still be necessary—to use that word—for the necessity condition to be satisfied. I would be grateful for the noble Baroness’s confirmation of that.

My third point is that I, like the noble Lord, Lord Beith, am intrigued by the reference to the Government still considering the wording to be used for the creation of criminal offences. We look forward to seeing what they say. It sounds like it will be coming back at Third Reading, and on that I would welcome the Minister’s confirmation. In any event, in doing that, and as the Government consider their words, the House might expect the Minister’s statement to explain not just that there are good reasons for creating the offence but why there are good reasons for creating it in this way. Of course, as the noble Lord, Lord Beith, has said, there is no reason not to create criminal offences by primary legislation; our concern has been creating them by delegated legislation. The House will need to be satisfied that that is an appropriate thing to do in a given case. I look forward to hearing the response to those points.

[Baroness Goldie]

I now look forward to giving that response. I thank the noble and learned Lord for his comments. On his first point, which is fairly legitimate, he will be acutely aware that Ministers have not just a personal but a political responsibility. They are, in the office of being a Minister, responsible for having made the statement. That, I think, imputes to the Minister both a political and a personal responsibility. Governments of all colours act in good faith and the Ministers involved act in good faith. I think this House will be satisfied that Ministers of whatever political hue acting under these powers will genuinely have a personal focus on what is being discussed—I think “focus” was the word used by the noble and learned Lord.

The statement must both make the original statement and give an explanation of the delay in having brought the statement forward. I have tried to make that clear in my remarks: this is not an alternative responsibility but a complementary responsibility; the two things will apply. A Minister cannot shoal off one of them and offer the other. Both responsibilities will apply.

The final point was that, when creating an offence, the noble and learned Lord thought it was appropriate to justify not just why the offence was being created but why it was being created in this way. Again, that is ex facie. Part of the impact of the responsibilities of the Minister under the Bill, if so amended, is that they can expect to be questioned closely. Indeed, given the now very robust scrutiny procedures that are in place, Ministers will expect to be questioned closely not only as to why they are creating the offence, but why they are doing so in this way. That is implicit in the structure within which Ministers are now being asked to operate. I hope that to some extent answers the noble and learned Lord’s points.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Goldie

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I start by thanking my noble friend Lord Rooker for reminding us of the work of Lord Renton. Those of us who were privileged to serve in this House with Lord Renton, and others who served in the other House with him, will well recall what my noble friend said about his work. We would do well to remember it and so I thank my noble friend for reminding us.

As for the amendment moved by the noble and learned Lord, Lord Judge, it would be very difficult, if not impossible, not to feel the force of the logic that he so powerfully expressed. As the noble Lord, Lord Lisvane, said, it is not a very strong response to say that there are protections in the way in which statutory instruments will be presented to this House and the other House. I add to that the fact that there are other protections this House has said are necessary, at least in relation to certain changes, for example those which might affect elements that require—as this House has said—special protection when it comes to the use of the delegated powers this Bill is intended to provide.

Having said all that, there remains a strong logic in what the noble and learned Lord, Lord Judge, has said, and I think we all hope that is carefully considered by the Government, for both this Bill and future Bills. It is fair to say—like the noble and learned Lord, Lord Judge—that at least this Bill has some restrictions on the way these powers may be used, and I commend his requirement—his request—that when Ministers give reasons for the use of these powers, we understand just what they have in mind. This House and the other place should look carefully at that. That said, we will wait to see what the noble and learned Lord will do with his amendment.

What is being said about Amendment 53 is to be welcomed. That should not be overlooked. The noble Lord, Lord Callanan, has added his name to this amendment. It is one of the few occasions—I think the only occasion—when one gets five names on an amendment: when a Minister sees the error of his ways and adds his name to the amendment. That remark may be churlish of me—the noble Baroness, Lady Goldie, is nodding vigorously—but the important point is that we welcome the Government’s acceptance of that amendment. That was the most egregious part of the Henry VIII clause: that it should be possible to use it to amend even this very Bill, which your Lordships have spent so many hours and days debating. It is, therefore, good to see that go.

I ask the Minister—I think it may be the noble Baroness—to confirm one thing. Amendment 53 omits the words “including modifying this Act”, which currently appear in the clause. My belief is that those words were there because without them it would not be possible to use the power to amend the very Act in which the power appears. I believe that is stated in parliamentary counsel’s guidelines on clauses such as this.

I very much hope the noble Baroness will confirm that when she responds to the amendment. I know that attempts were made through the usual channels to make sure that whoever responded to the debate had notice of that question. I hope, therefore, that she has been adequately briefed on it. I think, however, that your Lordships will want confirmation that that is the purpose of this amendment. It was certainly the purpose when it was tabled: that it should take away this most egregious possibility of being able to use the power to amend the very Act itself. I will give the noble Baroness time to get clarity on that, but I can assure her that attempts were made through the usual channels to ensure that she was not taken by surprise by it. I do not know quite what happened.

In any event, we would certainly want Amendment 53, when we get to it shortly, formally moved by the noble Lord, Lord Lisvane, and I look forward to supporting it then. In the meantime, I wait to see how the noble and learned Lord deals with his amendment.

[Baroness Goldie (Con)]

My Lords, let me start on a positive note. My noble friend Lord Callanan was indeed pleased to add his signature to Amendment 53, tabled by the noble Lord, Lord Lisvane, which will remove the ability under Clause 9 to amend the Act itself. I note that this amendment is supported not just by the noble Lords in whose names it lies but by the Delegated Powers and Regulatory Reform Committee of this House. It was one of that committee’s recommendations for the Bill and, given that the Government are happy to support this amendment, we are pleased to be in such illustrious and learned company. It is a heady experience, I have to say.

I am sure that noble Lords will welcome this amendment to a part of the Bill that has continued to cause concern to many throughout its passage. It is important to explain why the Government included such a measure at the time of introduction—this may partly address the point raised by the noble and learned Lord, Lord Goldsmith. When the Bill was first drafted, this provision was not an attempt to hold open a back door to circumventing or undoing any of the protections or constraints in the Bill. Rather, it was seen as a necessary step to provide the flexibility to respond to developments in negotiations. Indeed, the fact that aspects of the Bill may need to be amended, depending on the outcome of these negotiations, still remains. Our acceptance of this amendment does not reflect a change in that regard. Rather, the decision to introduce in due course a withdrawal agreement and implementation Bill, which will give effect to the implementation period, the citizens’ rights agreement and the financial settlement, among other provisions of the withdrawal agreement, provides another door through which the Government may make all the changes required.

Without a strong justification for retaining Clause 9’s ability to amend the EU withdrawal Bill once it becomes an Act, the Government are indeed content to remove that ability. As with our amendment to remove Clause 8, I hope this shows the Government’s commitment to working with Parliament and I reassure the noble and learned Lord, Lord Judge—

[Baroness Goldie]

I listened with interest to that point, but I am not sure that I entirely agree with that construction of the change to Clause 9(2). Amendment 53 means that we will not be able to amend the Bill when it is an Act. It therefore restricts the scope of the power, which seems to have met with the satisfaction of those who have put their names to it. As I have said, that is a positive and, I hope, a helpful reassurance from the Government.

[Lord Goldsmith]

Can we just agree that, as far as the noble Baroness and the Government Front Bench are concerned, it is the belief of the Government that removing the words as proposed in the amendment to which the noble Lord, Lord Callanan, has put his name, would preclude the power in this clause being used to amend the Bill once it becomes an Act?

[Baroness Goldie]

In short, yes—with this caveat. The Government regret that we are not able to be signatories to Amendment 52A, in the name of the noble and learned Lord, Lord Judge, because, as he has indicated, it seeks to remove Clause 9(2) completely, thereby removing the power to amend primary legislation. However, it is always a joy to listen to the noble and learned Lord’s eloquent and well-informed contributions.

Let me explain the Government’s position. Even with the introduction of the withdrawal agreement and implementation Bill, Clause 9 residually serves as a supplementary measure to implement the more technical elements of the withdrawal agreement that will need to be legislated for in time for exit day. These technical amendments may need to be made to primary legislation in exactly the same way as in secondary legislation, so we cannot accept limiting the power in the way sought by the noble and learned Lord. However, I say to him, as he specifically raised this point, that the new transparency procedures for such regulations would require the Minister to make clear in the supporting memorandum what legislation was being amended. I hope that reassures him.

The Government believe that whether a change is made to primary or secondary legislation does not always reflect the significance of the changes being made. Equally, the level of detail involved may be better suited to secondary legislation. I hope that noble Lords will understand the Government’s reasoning on this and will welcome the Government’s compromise through the removal of the ability to amend the Act. I repeat the categorical assurance I have given to the noble and learned Lord, Lord Goldsmith, on that point. This further demonstrates the Government’s commitment to restrict the scope of the powers sought wherever practical. I hope this amendment is enough to reassure the noble and learned Lord, Lord Judge, and that he will withdraw his amendment.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Goldie

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, in supporting this amendment also, I start by just noting one thing we have learned during the passage of the Bill so far: how very complicated the process of exit will be. That is important, because, as the noble Lord, Lord Deben, rightly reminded us, the purpose of the Bill is to enable us to leave, but with the same rights and obligations, and the same protections, the day after exit as the day before. The Prime Minister made that promise very clear. This amendment would help to make sure that this promise can be kept. If one looks at the way the Bill currently deals with rights that are being passed over, one can see the complication in the provisions as drafted.

I will not repeat the arguments that were raised in Committee, nor indeed repeat those that have been so well made by my noble friends Lady Jones and Lord Puttnam and by the noble Baroness, Lady Bakewell. However, one thing is clear: if there is a defect in what the Government are doing and if the provision will not pass across into our law the day after exit those things it should, the amendment simply says that this is a mechanism by which they can be brought in. I think the Government would want to welcome that, because it means they could achieve what they want to achieve in what is, as I said, a complicated area in which it may be difficult to be sure that everything has been done as it should. Of course, if it is unnecessary because all the rights have been passed across, in those circumstances there will be no need for the clause to operate. However, it will be there to achieve what is required.

I will make one other point, because it may look to some slightly paradoxical to use a ministerial power of regulation to achieve this when so much concern has already been expressed in this House, and will be on amendments to come, about the overuse of delegated powers. This differs from the other powers that concern has been expressed about. It is not a discretion of the Minister to use the power but an obligation to do so if certain conditions are met: if in fact—and it is an objective fact which can be verified or not—retained EU law does not give effect to,

“rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day”.

Therefore, it makes sense to do that.

The noble Lord, Lord Deben, made the sensible suggestion that if this amendment does not quite do it the right way, the Government can and should come back with an alternative method at Third Reading. However, that they should do something to make sure this gap is plugged seems a strong and correct argument, and for that reason I support the amendment.

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Brown of Cambridge, in absentia for her Amendment 12 and to my noble friend Lord Deben for speaking to it on her behalf. I note that this amendment is very similar to an amendment tabled in Committee by the noble Lord, Lord Krebs, to which the noble Baroness was a signatory. As was the case with that amendment, Amendment 12 seeks to amend what EU law is retained through Clause 4.

As this House is aware, and has been said earlier within the debate, one part of EU law that the Bill does not convert into our domestic law is EU directives. The reason for this is clear. As EU directives as such are not a part of our domestic law now, it is the Government’s view that they should not be part of our domestic law after we leave the EU. Instead, the Bill, under Clause 2, is saving the domestic measures that implement the directives, so it is not necessary to convert the directives themselves. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease.

However, the Bill recognises one exception to this approach. Where, in a case decided or commenced before exit day, a domestic court or the European Court of Justice has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will retain the effect of that right, power, et cetera within UK law.

That seems to the Government to provide a clarity which it is important for this Bill to achieve, and it is why we believe that Clause 4 as currently worded strikes the right balance—ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty within our statute book about what will be retained in UK law at the point of exit.

I shall explain to my noble friend Lord Deben what we see as a difficulty. This certainty would be undermined by the amendment, placing both businesses and individuals in the difficult position where they are uncertain about whether the rights they rely on will change. It could also create practical difficulties for our courts following our exit. There could be new litigation about whether implementing legislation correctly or completely gave effect to a pre-exit directive, and whether Ministers had fulfilled the duty in the amendment’s proposed new subsection (3) to make implementing regulations. This could continue for years after our exit from the EU, effectively sustaining an ongoing, latent duty to implement aspects of EU legislation long after the UK had left the European Union.

I think it would be acknowledged that it would be strange for Ministers to be obligated to make regulations to comply with former international obligations which the UK is no longer bound by. Although Ministers might find that they were obliged to make regulations under the amendment, it would presumably still be open to Parliament to reject the instrument and either require it to be revoked or decline to approve it, depending on the procedure involved, yet the Minister would, under the terms of the amendment, remain under a legal obligation to make regulations. I think that this gets to the heart of the problem: how is that tension to be resolved?

Therefore, I say to my noble friend Lord Deben that, although I understand that the genuine intention behind the amendment is to give confidence and certainty, in practice I do not think that it would necessarily achieve this, and I respectfully suggest that the real consequence would be confusion.

Furthermore, the amendment specifically implies that the Government would have to undertake a thorough investigation, as soon as possible, of all the EU directives that have been domestically implemented over the course of this country’s 40-plus years of EU membership to ensure that they have correctly and completely implemented them all.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Goldie

Wednesday 14th March 2018 Lords Chamber

[Baroness Goldie]

If I can continue, I might be able to reassure my noble friend by giving some illustrations of where the Government anticipate these powers may need to be used.

[Lord Goldsmith]

Before the Minister resumes—without wishing to interrupt her further—can I just take her back to the point she made about the Enterprise Act and the Third Parties (Rights against Insurers) Act? I do not have them in front of me, but does she agree that they are Acts of a very different nature to the constitutional Act that this Bill—and the surrounding legislation—gives rise to and were not subject to the same degree of scrutiny as the current legislation is being subjected to?

[Baroness Goldie]

I was merely trying to be helpful in giving your Lordships some indication of what already exists. I was simply reassuring your Lordships that the Government were not having some legislative aberration by introducing powers just for the sheer merriment of doing so.

There have been some suggestions that we should make changes now but I would submit that that is simply not responsible. We cannot be certain of the exact detail of the withdrawal agreement until the final text has been agreed, and attempting to second-guess its content by legislating for it now would be premature and ill advised. We need to be prepared. Let me give an example; I hope this will reassure my noble friend Lady McIntosh. In earlier debates in Committee, various noble Lords asked the Government to give clarity, for example, on the status of cases that are pending at the Court of Justice of the European Union at the moment of the UK’s withdrawal. The Government suggested that such clarity was desirable but can be provided only through a legally binding agreement with the EU. Before that point, we can legislate for what we would like the CJEU to do, but we can have no certainty as to whether it would actually do it.

It is our clear hope and expectation that we will reach a withdrawal agreement that includes provision that UK cases pending before that court on exit day will continue through to a binding judgment, as set out in the joint report published in December. As noble Lords know, that agreement would then be put to a vote in both Houses of Parliament. After that point, if the UK Government, Parliament and the EU have all assented to the proposition that these cases should continue to a conclusion, amendments may be required to the EU withdrawal Act to facilitate that agreement. That was the point my noble friend Lady McIntosh was making. Bearing in mind the limited number of those cases in practice—and the level of agreement that would already have been demonstrated to the general proposition—it does not seem to me unreasonable that it should be open to the Government to implement it by secondary legislation. The noble Lord, Lord Bilimoria, asked a very fair question about how many regulations we anticipate making. I do not think it will be extensive, for the very reason that this clause is cut off on exit day.

[Baroness Goldie]

I understand what the noble Lord is saying, and I accept in principle that that is a fair assessment of the position, but that is not to say that that should preclude the flexibility to deal with something if it does arise. That is why the Government maintain that there is an argument to justify retention of this provision.

[Lord Goldsmith]

To take that slightly further, following the question from the noble Lord, Lord Beith, if the withdrawal agreement provides that, after exit, there will be some continuing cases that can be decided by the CJEU, that is what the withdrawal agreement will say, and that, therefore, can easily be provided for in the implementation of the withdrawal agreement legislation, can it not?

[Baroness Goldie]

No one is saying that it could not be; it is just that there may be advantage in anticipating that and trying to introduce an earlier and swifter procedure to deal with it. I suppose that that, in essence, is the justification or argument that the Government are advancing: we want both flexibility and, if necessary, rapidity in responding to whatever situations are there.

[Lord Goldsmith]

If, as the noble Baroness’s answer suggests, it does not need to be done in this way but can be done in the other way we are suggesting, that really answers the question that has been posed to the Government: why do you need this wide-ranging, constitutionally unacceptable power? The answer appears to be that the Government do not need it, because it can be done in the way that others have indicated.

[Baroness Goldie]

I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.

A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.

I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.

The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Baroness Goldie

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My noble friend is absolutely right that this is not a small or insignificant matter. It is an important one with rule-of-law implications. The starting point, as he explained, is his proposed Amendment 62 which, if agreed, would add a new paragraph (6C), the purpose of which would be to encourage the negotiation of an agreement that cases can continue to be referred to the CJEU by our own courts after exit day. That would relate to new cases where the cause of action arose prior to exit day. This is logical because the important point is about whether the full remedies currently available to litigants, potential litigants and, importantly, our courts remain until we leave, while the law of the EU remains in place.

Of course, being able to refer such cases depends on an agreement, the very agreement that my noble friend’s amendment would make it an objective to negotiate. We will not be able to refer cases to the court in Luxembourg after exit day, except by agreement with the EU in such an agreement. But he is also right that there is a risk—although we hope very much that it will not happen—that if we end up without a withdrawal agreement, there would need to be legislation enabling this to continue to take place. So the principle of the amendments seems entirely right, and he is right to say that this was dealt with by the Constitution Committee at paragraphs 150 and 153 of its excellent report.

Perhaps I may refer to what the committee said in paragraph 153, having made the point that my noble friend has identified:

“We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of ‘retained EU case law’—and that the Government publishes, on exit day, a list of all such cases”.


The middle part of that, on what the significance is of,

“rulings on cases that have been referred … before exit day”,

is dealt with in a later amendment. But, as he has said, the requirement that the Government should publish a list of all such cases is dealt with in these amendments. He is right to say that the Solicitor-General in another place referred to the importance of knowing, at least as I read his remarks, what those cases are.

It seems that there has to be a justification, although I can see none, for depriving litigants and our courts of the ability to refer cases to the CJEU. It is important that noble Lords are clear on the fact that that does not mean sending cases to the CJEU for it to decide; it is for that court to determine questions of interpretation, as the treaty currently provides, although the interpretation given may in fact then decide the case. Our own courts would then take the interpretation provided by the European court and apply it to the case before them.

I look forward to hearing what the noble Baroness or the noble and learned Lord, depending on who will respond to the debate—forgive me, of course it is the noble Baroness the Minister—will say to my noble friend.

[Baroness Goldie (Con)]

My Lords, this may have been a short debate but it concerns a significant issue, and I am grateful to the noble Lord, Lord Bassam, and the noble and learned Lord, Lord Goldsmith, for their contributions. I am aware that a key issue of interest in this Committee is how pending cases before the European courts will be resolved, and I hope that I can respond relatively briefly to these amendments in the name of the noble Lord, Lord Bassam.

As was acknowledged in their contributions, the Government have been clear regarding their approach to cases which have been referred to the European courts before exit day and we have made good progress in achieving this outcome in our negotiations with the EU. As such, I applaud the similar concern expressed by the noble Lord that there should be legal certainty in this area. However, as I have said previously, and indeed as my ministerial colleagues have also said, the purpose of this Bill is to provide a functioning statute book on the day we leave the EU, irrespective of the result of the negotiations on any final agreement with the EU.

The Government have been clear throughout the passage of the Bill through this House and the other place that it is not intended in any way to prejudge the negotiations or to predict an agreement between the UK and the EU on their future relationship. For that reason, I would submit that the Bill is not a suitable vehicle for such amendments to take effect. Future legislation will be needed to implement the withdrawal agreement, including the treatment of cases that are pending before the European Court of Justice. That legislation will need to be informed by the precise terms of the agreement. The Government have already committed to introducing a withdrawal agreement and an implementation Bill, but let me try to clarify a couple of the specific points raised.

I think it was the noble and learned Lord, Lord Goldsmith, who in effect asked about the status of a case that has been referred to the European court before exit, but does not proceed to a judgment until after then. The intention is that a case which starts and has been referred to that court before exit would proceed to a judgment, which our courts would be bound by. That is the intention but—let me make this clear—this is pending an agreement with the EU about these issues. In relation to the request of the noble Lord, Lord Bassam, for a list my understanding is that, at the moment, cases registered at the Court of Justice of the European Union are made available online, so after our withdrawal we will have certainty as to how many pending UK cases have been referred to the court.

I apologise to the noble Lord and the noble and learned Lord if I have not specifically addressed some of their concerns. The difficulty, as was made clear in December, is that there is a clear statement of intention made in good faith by the Government, surrounding heads of agreement that have been achieved between the United Kingdom and the EU. But we need to continue with our negotiations to fine tune that, and hopefully then reduce it all to the final agreement. But I cannot pre-empt what may be in the final agreement and I hope that, in these circumstances, the noble Lord, Lord Bassam, will feel able to withdraw his amendment.

[Lord Goldsmith]

I apologise for not having properly identified the noble Baroness, Lady Goldie, as the Minister responding to this debate. I wonder whether she will allow me to just press one question. She has very helpfully identified the position in relation to pending cases that have started but for which rulings have not been given at the date of exit. These amendments include an additional category of cases, as I understand it, such as cases where the cause of action has arisen prior to exit: for example, where EU law is in place and there is an issue of EU law that a litigant wants to raise but they have not actually started the case at the moment we leave; or where the case has started but a reference has not been made at that stage, because the court does not make a reference until it comes to a particular point in the proceedings. In line with her helpful answer in relation to the category of cases that are pending in the CJEU at the date of exit, does she think the same principle ought to apply, subject to agreement, to cases where the cause of action has arisen before exit or the case has started but not got any further than that? Could she help on that point?

[Baroness Goldie]

I thank the noble and learned Lord for his point, but I am afraid my response is going to be slightly less encouraging for him. The position of the Government is that we do not agree that new cases should be initiated post exit, even when these refer to pre-exit causes of action, because it would lead to an uncertain environment. It would be impossible to predict for how long the European Court of Justice would continue to issue judgments in respect of the UK. That, in the opinion of the Government, would strike at the underlying purpose of this Bill, which is to try to achieve a snapshot—to use that phrase again—as at the date of exit.