European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020

Lord Thomas of Gresford Excerpts

Monday 30th November 2020 Grand Committee

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

In 32 days’ time, the whole body of law concerning our relationship with the European Union, developed over 48 years, will disappear, and we shall be entering new legal territory. Retained European law will be added to our domestic law—a whole body emanating from the directives and regulations that we have hitherto followed through our membership of the European Union. This was the effect of the European Union (Withdrawal) Act 2018. As I understand it, if we wish in future to depart from or change anything in retained EU law, we will do it by the normal processes of Westminster legislation. Ambulatory provisions in European regulations, which provided for an automatic update in accordance with changes in European law, will cease.

All that was difficult enough, but understandable. However, as a result of the withdrawal agreement that was finally concluded earlier this year, the European Union (Withdrawal Agreement) Act 2020 was taken through Parliament. One purpose of that Act was to replace references to exit day with “IP completion day”; the changes made by the 2018 Act were, therefore, pushed back from exit day—the day when we left the European Union, at the end of last January—to 1 January next.

Another purpose of the 2020 Act was to fulfil the promise made in the Conservative 2019 manifesto that all British courts, down to and including magistrates’ courts, could throw off the burden of EU case law and principles, as interpreted by the European Court of Justice. The thinking behind that was not to promote the clarity and stability of our domestic law: it was, as I said in Grand Committee last week, the expression of the Conservative Party’s allergy to the European Court of Justice—an itch which has to be scratched.

As the 2020 Act required, there was extensive consultation of 73 bodies, encompassing the whole legal and judicial community. The manifesto commitment had by this time been watered down to a proposal that only the courts at Court of Appeal level should be able to depart from the precedents set in Europe. Only 20% of the consultees were in favour of this proposal, as we discussed last week; 80% were either wholly against it or did not support it. The Minister will no doubt be interested to hear that the noble and learned Lord, the Advocate-General for Scotland, in introducing the rejected proposals last week, nevertheless told us that we could be reassured by the fact that consultation had taken place. He did not actually mention the result of the consultation. Well, there is no such problem here, as there has been not the slightest consultation over these regulations—yet they, too, are supposed to introduce sweetness and light.

Unfortunately, the 2020 Act introduced the new concept of the “relevant separation agreement law”, which provides that any question as to the validity, meaning or effect of any “relevant separation agreement law” is to be decided in accordance with the withdrawal agreement and the like agreements and is to be consistent with various articles of the withdrawal agreement—and not just the current articles that are in issue, because the definition of “relevant separation agreement law” is widened by a final coda saying

“as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time”.

Any lawyer trying to advise a business client as to his position with regard to, say, contractual or intellectual property rights already has a difficult task. Any individual embarking on litigation to sort out a dispute faces extensive legal costs and untold worry.

However, that is not the end under these regulations. Paragraph 6.6 of the Explanatory Memorandum tells us that the provisions of the European Union (Withdrawal) Act and the amendments made to that Act by the 2020 Act

“mean that it is possible for EU instruments to form part of retained EU law for some purposes and have effect as relevant separation agreement law for other purposes. This means that after IP Completion Day”—

in 32 days’ time—

“references to EU instruments in domestic legislation can have a dual meaning. For example, referring to the original version of the EU instrument that has effect as relevant separation agreement law for some purposes and referring to the domesticated version of the EU instrument that forms part of RDEUL for other purposes.”

So, in these regulations we are now importing into our domestic law retained EU law as amended by relevant separation agreement law, and any future amendment of it, as interpreted in the articles of the withdrawal agreements—and references to EU instruments in domestic law can have a dual meaning. Incidentally, the Northern Ireland protocol is part of the withdrawal agreement and is already under fire, with power to make regulations to break the law included in the UKIM Bill as drafted. We will have to see how that turns out.

For the sake of the sanity of the Court of Appeal and the Supreme Court, will the Minister kindly tell us how this dual meaning is supposed to take effect? What exactly are the separate dual meanings and for what purposes will one meaning be applicable in relevant separation agreement law and one in the domesticated version that is to form part of the retained domestic EU law? I cannot think of any legislation with a dual meaning for the same wording in the same provision which is to be interpreted differently in different legal contexts. I am willing to be enlightened.

I cannot expect the Minister to sort out this mess at the Dispatch Box, but I would be grateful if a memorandum could be prepared and published to make the position clear for lawyers advising their clients and judges seeking to interpret already complicated provisions of law. In any sensible legislative body, this instrument would be withdrawn and reformulated. Unhappily, so ineffective and weak are the procedures of the United Kingdom Parliament in scrutinising secondary legislation—as we are supposed to be doing now—that this instrument will go through in its present form. God help those who have to interpret it.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I call again the noble Lord, Lord Bhatia, in the hope that we shall be able to hear him this time.