European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

Lord Ponsonby of Shulbrede Excerpts

Wednesday 25th November 2020 Grand Committee

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the Labour Party does not support these regulations. When responding to the government consultation, both the Bar Council and the Law Society expressed a strong preference for the power to depart from retained EU case law to be reserved only to the Supreme Court and the High Court of Justiciary in Scotland. In its response to the proposed changes, the Law Society clearly stated that

“the power to depart from retained case law should not be extended to UK courts … beyond the Supreme Court ... Any change from this position constitutes a major shift in the administration of justice. This could result in a lack of legal certainty through the emergence of novel judgments that are either not binding on other courts or are inconsistent with precedent.”

Those serious concerns should not be overlooked by the Government.

On 2 July this year, the Government launched a consultation on whether the extension would be the right thing to do. The noble Lord, Lord Thomas, went through the findings of that consultation, and he teased the Minister about his wry Scottish sense of humour, because of course the results of the consultation were very different and far more negative than he intimated.

My honourable friend Alex Cunningham, when speaking in the other place, explained that granting the power to depart from retained EU case law to the lower courts is likely to encourage litigation by parties who hope to overturn an earlier judgment that relied on EU case law, and subsequently will increase the volume of cases. That will inevitably put additional pressure on the courts, which already face a significant backlog due to both the pandemic and the cuts that we have seen in the courts system over the past 10 years.

Both the legal sector and trade unions expressed their opposition to the Government’s proposals. Unions are hugely concerned about the impact that a mass departure from retained EU case law would have on workers’ rights. Unions were also clear that the Government should not go ahead with the plan because it would undermine the doctrine of precedent and cause significant uncertainty and disruption to both employers and employees.

We accept that the courts should have the power to divert from EU case law vested in UK law, but that power should remain exclusively with the Supreme Court. We request that the Minister address all the concerns expressed by the legal profession and the trade unions. Will he outline why the Government have chosen to proceed with these regulations? Can he help outline what they plan to do to ensure that the courts under the Supreme Court are able to operate effectively, and to ensure that the changes do not simply result in increased litigation and, ultimately, in even more appeals to the Supreme Court? What reassurance can he give to trade unions that their fears are unfounded and that workers’ rights will not be compromised as a result of the changes proposed in this statutory instrument?

We believe that, based on current evidence, the Government cannot truly justify the changes brought in by the statutory instrument. The Labour Party has sought to work constructively with the Government as they have embarked on their programme of introducing necessary secondary legislation across all areas for use after the transition period. However, on this occasion, we do not feel that the changes to be implemented by these regulations are justified. We will not vote against the regulations, but we do not support them.