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

Alex Cunningham Excerpts

Tuesday 17th November 2020 General Committees

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship on a particularly dull afternoon, Sir Christopher. I hope that my speech will not be too dull.

The Opposition try to work with the Government to help us prepare for the end of the transition period. I am not the only one who has been content with brief speeches and decisions not to oppose the Government’s plans in many areas. Sadly, we are in a very different place with this statutory instrument.

As the Minister said, the European Union (Withdrawal) Act 2018 sets out the legal framework following our departure from the EU, after the end of the transition period on 31 December 2020 – a mere six weeks away. The aim of the 2018 Act is to provide much needed legal certainty in our domestic law, following Brexit. That is something that we welcome. As the Minister said, the 2018 Act sets out, among other things, which pieces of EU case law are to be retained in our domestic law, and how those laws are to be interpreted by our courts. As things stand, the 2018 Act gives the UK Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law if those courts consider that it is right to do so. The provisions of the SI would extend the power to depart from retained EU case law to the Court of Appeal of England and Wales, as well as to other courts of appeal.

On 2 July 2020, the Government launched a consultation on whether that extension would be the right thing to do, and the Minister referred to it. In total, there were 75 responses to the consultation ranging from members of the judiciary to trade unions. Almost half of the responses received were from members of the legal services sector. The responses are quite startling. When respondents were asked whether the power to depart from retained EU case law should be extended, as the Government wish, beyond the UK Supreme Court, almost 60% of respondents were clear that it should not. When respondents were asked what positives would come from extending the power to the Court of Appeal, as proposed by the Government, only 9%— 9%, Sir Christopher—of respondents said that doing so would

‘strike the right balance between legal certainty and the evolution of law’.

Even fewer respondents—only 8%—agreed with the Government’s assertion that extending the power of the Court of Appeal would reduce pressure on the UK Supreme Court.

On the other hand, let us look at what respondents thought would be the negative impact of taking the decision. Some 37% of respondents said that extending the power of the Court of Appeal would introduce an element of uncertainty into UK law; 16% said that it would be an inappropriate constitutional change; and 24% said that it would lead to an overall increase in court workloads, when our court system is already on its knees as a result of the pandemic. That prompts the question, with such negative feedback, why are the Government so keen to pursue this action?

What is the point of holding a consultation just to ignore the very clear message of those who have responded? Both the Bar Council and the Law Society have also 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 made its view very clear and said

‘the power to depart from retained caselaw should not be extended to UK courts…beyond the Supreme Court’.

It went on to say

‘any change from this position would constitute a major shift in the administration of justice’

which could

‘result in a lack of legal certainty through the emergence of novel judgements that are either not bringing on other courts or are inconsistent with precedent.’

Those serious concerns cannot be overlooked.

Granting the power to depart from retained EU case law to 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 are already facing a significant backlog at this time. The Minister mentioned the behaviour of litigants, and how the success of the instrument will rely on that. Well, I do not know whether he can really trust that people will not start to follow the route I have described.

It was not just the legal sector that opposed the move, the unions also expressed their opposition. The Government’s response to the consultation makes it clear that the unions are hugely concerned about the impact that a mass departure from retained EU case law would have on workers’ rights. The response notes that the unions were clear that the Government should not go ahead with the plan as it would undermine the doctrine of precedent and cause

‘significant uncertainty and disruption to both employers and employees.’

But this is not just about the professionals and the impact on workers’ rights. The proposals could have an impact on all areas of law—competition law, state aid, trade, agriculture, employment and intellectual property. And the Minister outlined other sectors of the law. Given all those areas of law, to attempt to overcome adopted established EU case law could result in our courts being overworked with all manner of weird and wonderful cases to deal with.

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. I invite the Minister to address all the concerns expressed by the legal profession and the trade unions in particular. Will he outline why he believes the professionals are wrong in their concerns and how justice will be properly protected? Can he outline what the Government plan to do to ensure that the courts under the Supreme Court are able to operate effectively in the areas covered by the SI, and to ensure that the changes do not simply result in increased litigation and, ultimately, even more appeals to the Supreme Court?

We know that the Government have always been keen to stress how important workers’ rights are to Ministers and how workers have nothing to fear from a departure from EU law, which has in the past enhanced and better protected those rights. What reassurances can the Minister give to trade unions that their fears are unfounded, and that workers’ rights will not be compromised as result of the changes proposed today? We will wait and see, but I cannot see how the Minister can justify all the changes brought in by the SI. We have tried to work with the Government, and even help them to get the necessary secondary legislation in place in all manner of areas for use after the transition period. On this occasion, we are also trying to help, but as the proposed regulations stand, we will oppose them.