European Union (Withdrawal) Bill

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Faulks]

My Lords, the genesis of this debate is at least in part the evidence that the former President and current President of the Supreme Court gave to the Constitution Committee of your Lordships’ House. We had a good debate in Committee. It is clear that the judges wanted clarity as to how they should approach decisions of the European Court of Justice post Brexit, perhaps not least because of the difficulty they had relating to the Human Rights Act in determining what “taking into account” meant. Clarity would certainly have followed if they were told either to follow or to ignore the decisions, but that would not have been sensible or what the Government wanted.

As a result, we were engaged in something of a struggle to find the right formulation. The word “appropriate” in the original Bill received an almost unanimous no. “Relevant” is clearly important, but in some senses it is hardly necessary because the court will not take into account a decision that is irrelevant. I tabled an amendment, which is before the House, saying “relevant and helpful”. I readily concede that “helpful” is not a word that often finds its way into statute. However, I was quoting precisely what the noble and learned Baroness, Lady Hale, recently said about how the court would regard, for example, foreign law and whether it would follow it because the reasoning was persuasive, rather than because it was bound to follow it.

Therefore, “relevant” on its own is, frankly, suboptimal, but I have been nevertheless persuaded by what my noble and learned friend said. It is the result of a number of heads being put together and the best conceivable solution being found. I was particularly reassured by his answer to the four points raised by the noble Lord, Lord Pannick, not least his answer to his fourth point about the position of the Lord Chancellor, which I am sure everybody in this House would support.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two observations, having raised this matter at Second Reading. I am very grateful to the Minister for his amendment, which certainly brings about clarity and certainty. But, having discussed the matter with others, I want to make sure that the certainty and consequences are clearly understood.

The draftsmanship is elegant, because although under subsection (2) a court may have regard to decisions made by the European Court of Justice after exit so far as they are relevant to any matter before the court, making that provision subject to subsections (3) to (6) means that a court could do so only to clarify the meaning or effect of retained EU law as at the date of exit. It therefore has the effect of confirming what I describe as the ossification of retained EU law as at the date of exit. Only the Supreme Court is permitted to depart from any retained EU case law under the test set out in subsection (5).

Although certainty is therefore brought about, it is at the price of ossification, other than by appeal to the Supreme Court. Ossification is a principle alien to the common law, which, while it has always sought certainty, has also always allowed a significant degree of flexibility to enable the law to develop and adapt to changing times. The principles of common law development are thus denied in the application of retained EU law to any court other than the Supreme Court.

A further feature of the clause is that the Supreme Court is given no guidance as to how it may exercise its right to depart from decisions of the European Court of Justice, save by reference to the 1966 practice statement and the subsequent case law. I think it right therefore to remind the House that it is giving the Supreme Court a very considerable degree of untrammelled power, subject, of course, to the right to reverse any such decision. I am very grateful to the Minister for the assurance he has given that if, in the exercise of that power, decisions are made they will be fully defended, but it is a considerable power.

I will make two further observations. First, a consequence of confining the power to depart from European Court decisions to the Supreme Court may well mean a significant increase in the case load of the Supreme Court. As we know, it has much else to do. I therefore ask the Minister if he would reconsider amending subsection (5) to permit the Courts of Appeal of England and Wales and of Northern Ireland, and the Inner House in Scotland, to be given a similar power. Not only would that alleviate the burden on the Supreme Court, but the experience of many sitting in the Supreme Court has shown that it is generally greatly assisted if it has a prior judgment of the Court of Appeal or Inner House on the question before it.

The final observation I will make echoes what the Minister said. As was often said in Committee, the Bill seeks to provide for a functioning statute book on exit in the event that there is no agreement with the EU. It has also been said there will have to be significant amendment by at least one further Bill in the event of agreement. If, for example, it is agreed that certain fields of our law or regulation must remain aligned for the purposes of non-tariff barriers, it will be necessary to ensure that the courts can take this into account in interpreting retained EU law and therefore have regard to subsequent European Court decisions to ensure that the law or regulations remain completely aligned. It is therefore, I regret to say, a matter that, in the event of an agreement, we shall have to return to at a subsequent stage. Again, I emphasise my thanks to the Minister for the discussions he has had and the certainty and clarity he has brought about.

[Lord Hope of Craighead (CB)]

My Lords, we have the luxury of having three different formulations for a possible amendment to Clause 6(2) thanks to the ingenuity of the noble Lords, Lord Pannick and Lord Faulks, and the Minister. For my part, I prefer the Minister’s version, which seems to be, in a subtle way, a little more generous than the formulation of the noble Lord, Lord Pannick, which is:

“A court … may have regard to anything done … after exit day … where it considers it relevant to the proper interpretation of retained EU law”.


The government amendment says,

“relevant to any matter before the court or tribunal”.

I suspect that most of these issues will be issues of interpretation, but it is perhaps wiser to have the broader formulation just in case the formula in the amendment from the noble Lord, Lord Pannick, is too tight to include something else.

As for “relevant and helpful” from the noble Lord, Lord Faulks, one can regard something as relevant and unhelpful as well as helpful. Therefore, I am not sure that it really adds very much. Obviously, a court would not do anything with it if it is unhelpful. I suspect that those words are surplus to what one is really talking about.

I have two other points. So far as Amendment 23 is concerned, the additional words:

“Subject to this and subsections (3) to (6)”,


are necessary because of the change from the prohibition in the original formula—that is,

“need not have regard to”—

to the new formula, “may”. When you use “may” it is as well to have the cautionary words just to make it clear. There is another view: that the amendment is unnecessary because the court will, of course, look at the entire section in understanding what it is supposed to do, but it does no harm to put those words in. In the interests of clarification, it is helpful to have them there.

Finally, I add a word of support to the point the noble and learned Lord, Lord Thomas, made about allowing the Court of Appeal and the Inner House, as well as the Supreme Court, to consider themselves not bound by retained EU case law. One has to bear in mind that the only way these issues will reach the Supreme Court under the formula in the Bill is by means of an appeal. It is not suggested that there would be a direct reference to the court. I am sure the court would not want that, because it would wish to have the issues properly focused by proceedings in the lower court.

I may be corrected if I am wrong, but I suppose that use can be made of the “leapfrog” procedure: if something comes up at first instance, it is possible to leap over the Court of Appeal direct to the Supreme Court. That may be a useful avenue in urgent cases. Usually, the Supreme Court is helped by the decision of the lower court. If the argument is focused at the lower court, it may not agree with it but it will at least have flushed out points that need not trouble the Supreme Court when dealing with the issue at the later stage. There is therefore something to be said for allowing the appeal courts to take up the same position as the Supreme Court in this field.

I simply endorse what the noble and learned Lord, Lord Thomas, said as something that the Government might like to consider. I do not know whether they are considering discussing the matter with the President of the Supreme Court to get her view, but there might be something to be said for that as well.