European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Foulkes of Cumnock

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

[Lord Pannick (CB)]

My Lords, the two amendments in this group address the important question of the weight, if any, to be given to the judgments of the Court of Justice of the European Union which are delivered after exit day. Amendment 55 is in the names of the noble Lords, Lord Foulkes of Cumnock and Lord Adonis. Amendment 56 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.

Amendment 56 would implement the recommendation of your Lordships’ Constitution Committee at paragraph 142 of our report on the Bill. After exit day, there is no dispute that our courts will make their own judgments on retained EU law. They will not be bound by judgments given by the court of justice after exit day. While judgments given before exit day will bind our courts up to the level of the Supreme Court, those given after exit day will not be binding. But our judges will wish to look at the judgments of the court of justice in Luxembourg delivered after exit day. That is not just because our judges are always interested, and rightly so, in seeing how courts in other jurisdictions address the same or similar issues. The connection here is much stronger. The retained EU law, which our courts will be interpreting, owes its origins to the institutions of the EU and there may be very good reasons for our courts looking carefully at how the court of justice has interpreted after exit day the same or a similar provision.

There are three problems with Clause 6(2) as currently drafted. First, it begins in a negative way by stating that a domestic court “need not have regard” to judgments delivered by the court of justice after exit day. That default position is unhelpful because it may be understood to suggest that our judges should not normally have any regard to post-exit day judgments of the court of justice.

Secondly, the end of Clause 6(2) allows the courts here to have regard to post-exit day judgments of the European court only if our courts consider it “appropriate to do so”. But judges do not look at foreign judgments because it is appropriate to do so; they look abroad for assistance because the foreign judgment is relevant to the issue that they are deciding. The terminology matters here. The use of “appropriate” wrongly suggests that our court will be making a policy choice to have regard to a post-exit day judgment from Luxembourg. Senior members of the judiciary have understandably expressed concern that if Clause 6(2) is left in its current form, the courts will inevitably be criticised for making a policy choice in this context.

I should make it clear that of course I do not speak for the judiciary, but I do speak to them. I can tell the Committee that many senior judges are very concerned about the content of Clause 6(2). Paragraphs 134 and 135 of the report of your Lordships’ Constitution Committee record the evidence that was given by the noble and learned Baroness, Lady Hale, the President of the Supreme Court, and her predecessor, the noble and learned Lord, Lord Neuberger of Abbotsbury, who I am pleased to see in his place today. The concern of the senior judiciary is not that judges should be shielded from criticism or that they are not tough enough to withstand it. The point is that confidence in the rule of law is undermined if judges are seen to be taking sensitive policy decisions that are for Parliament to make. Clause 6 therefore needs to make it much clearer that although our judges are certainly not going to be bound by Luxembourg judgments handed down after exit day, Parliament does intend our judges to have regard to judgments of that court given after exit day where they consider that those judgments are relevant to the issues before our courts.

The third defect of Clause 6(2) as currently drafted is that it suggests that the same principles apply to decisions of “another EU entity or the EU” itself. I am doubtful that there is any need to mention other EU entities or the EU itself, or certainly to compare them with the European court itself.

Amendment 56 seeks to address the issues in a manner which gives much clearer guidance to our courts. It would make it clear that our judges must have regard to a post-exit day judgment of the European court if the domestic court considers it relevant to do so. It would also add that in deciding the significance of any such post-exit day European court judgment, the domestic court should have regard to the terms of any agreement that is reached between the UK and the EU which it considers to be relevant. The terms of the withdrawal agreement, if and when approved by Parliament, will identify the relationship between the UK and the EU post exit day, and that will give considerable guidance to the courts.

I emphasise, however, that at all times under Amendment 56 and indeed under Amendment 55, it will be for the domestic court to decide on the significance, if any, of the Luxembourg judgment. There is no dispute over the fact that our judges will remain in charge in relation to post-exit day judgments. However, Amendment 56 would provide the guidance that they are seeking and which, I suggest, they are entitled to expect. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, there is little to add to the excellent introduction made to these amendments by the noble Lord, Lord Pannick, except to say that decisions of the other courts which currently have persuasive authority include those of the Judicial Committee of the Privy Council, decisions of higher-level foreign courts, especially in the Commonwealth and other similar jurisdictions, and one that I have a particular interest in, being a member of the Parliamentary Assembly of the Council of Europe; namely, decisions of the European Court of Human Rights, which under the Human Rights Act 1998 must be taken into account by UK courts. It is right that the European Court of Justice should have a similar role and persuasive powers.