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

Lord Thomas of Gresford Excerpts

Wednesday 25th November 2020 Grand Committee

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

My Lords, I think a Division is about to be called and I therefore recommend that we do not call the noble Lord, Lord Thomas of Gresford, until after the Division in order not to have to interrupt him. Is the noble Lord content to wait until the Division has been completed?

[Lord Thomas of Gresford (LD) [V]]

Yes, I am content with that.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is an allergy—an itch that has to be scratched. This bumbling Government are allergic to the very sound of the name “the European Court of Justice”. It sends a shiver down the spine—if they have one at all—of a significant section of the Conservative Party. I have never understood this, since, as I have pointed out on a number of previous occasions, the United Kingdom was remarkably successful in developing the procedures of that court and in conducting cases successfully before the court on behalf of the UK Government, with a success rate of over 90% of contested cases.

In 1966, Lord Gardiner, then Lord Chancellor, made a Statement on behalf of the Judicial Committee of the House of Lords to the effect that the committee was prepared to modify its previous practice and to depart from a previous decision when it appeared right to do so. He added the very important rider:

“In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”—[Official Report, 26/7/1966; col. 677.]


Some time ago the Minister told us that that Statement is well understood; I am not so sure that that is right.

That need for certainty could not be more important than in the context of commercial dealings between this country and the EU, over which we are agonising at this crucial time—this very day. Retained EU law will remain part of our domestic law after the transition period, in five or six weeks’ time. What could be more disturbing to contractual arrangements, trade and to prosperity than to have differing interpretations of the same provisions, set out in the same terms, in both UK domestic law and EU law as it is understood by our near neighbours?

I have direct experience of the way in which the Judicial Committee, now the Supreme Court, exercised its power to modify a previous decision. In 1982, I appeared for the appellant before the Judicial Committee in the case of Caldwell. My case was that recklessness as an ingredient of a criminal offence involved a subjective state of mind. My argument was defeated by 3:2 in the Judicial Committee on the basis that recklessness could be established objectively even if the defendant gave no thought at all to the risk. Lord Diplock delivered the majority opinion but Lord Edmund-Davies was on my side. The result of the case drew intense academic criticism, led by Professor Glanville Williams, whom some of us will remember with affection, if only for his magisterial textbook on the criminal law. Some 20 years went by, until in the case of R v G&R, the Judicial Committee reversed that decision. Lord Bingham, who delivered the unanimous opinion of the committee, said:

“Despite its power under Practice Statement … [1966] … to depart from its earlier decisions, the House should be very slow to do so, not least in a context such as this.”


However, to return to the present and being “reassured by the consultation”—I take it that that is a touch of wry Scots humour on the part of the Minister. From the Government’s point of view it was a complete failure. The Explanatory Memorandum shows that only 20% of the consultees agreed with this proposed extension of the power to depart from retained EU case law to other courts and tribunals. Further, only 9% believed that these proposals strike the right balance between legal certainty and the evolution of the law. Only 5% thought it maintained the necessary degree of predictability in the law and provided certainty.

On the contrary, a decisive majority of those consulted about the changes proposed in this statutory instrument were against any change at all, on the basis that it was a recipe for uncertainty. Why did the Government go on with this SI? Allergy—it is that nagging itch.

The clue to the problems which arise is in paragraph 7.4 of the Explanatory Memorandum, which states:

“Without the ability to depart from retained EU case law, there is a risk that retained EU law remains tied to an interpretation from the Court of Justice of the European Union that is arguably no longer appropriate in the UK.”


I stress “arguably”. I was wondering whether I should say anything adverse to this SI at all, since it will undoubtedly make good money for lawyers. The Minister will know that certainty of the law assists the settling of disputes without litigation. Uncertainty breeds litigation, from which, frequently, only the lawyers benefit. I would have thought that, under current practice, the Supreme Court’s power in the ultimate to depart from European case law would be more than enough to satisfy the Tory itch in the rare cases where the need for departure arises, but now litigants will argue at Court of Appeal level for a departure from settled EU case law. If the protagonist of a departure is successful, it is inevitable that the losing party will take the case for a final decision to the Supreme Court, which could hardly refuse leave to appeal if our Court of Appeal or its equivalent had introduced an ambiguity into the law. The changes will not reduce the burden on the Supreme Court, as has been suggested.

Whoever drafted this SI and the Explanatory Memorandum is not in touch with the real legal world, the world that responded to the consultation. Paragraph 10.9 of the memorandum states:

“The risk of driving large volumes of cases and legal uncertainty was the main reason cited in opposition to this proposed approach. It was also noted that the risk of divergence in decisions between jurisdictions was greater with this approach.”


The Bar Council submitted to the consultation that

“departing from the CJEU precedent is pointless unless the lower court has power to depart from the domestic precedent as well—but a power to depart from precedents set by high courts (or, in the case of the Court of Appeal, its own past judgments) would be a major disruption of the system of precedent on which legal certainty depends in a common-law system.”

In response, the Government have preferred specifically to stick with the current system of domestic precedent, thereby making the policy behind this SI, to quote the Bar Council, “pointless”.

Another area which introduces a sense of unreality is the courts to which this power to depart is extended. I know nothing of the land valuation court in Scotland nor am I anxious to know, but, as chair of the Association of Military Court Advocates, I cannot conceive how the decisions of the European Court of Justice are relevant to courts martial proceedings in any way whatever, yet the Court Martial Appeal Court heads the list. Was the drafter of this SI confusing the European Court of Human Rights, which has had a great deal to say on military justice and, as a result of its decisions, has considerably improved our system, with the European Court of Justice? It is frequently done. Perhaps the Minister can enlighten me. I do not suppose that he has, as yet, caught the itch.