Retained EU Law (Revocation and Reform) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Whitty (Lab)]

My Lords, your Lordships may have noticed that there is a rather cruder amendment in my name towards the end of this group: Amendment 99A. I am not a lawyer, but much of my life in politics and trade unionism and as a consumer champion has been defined by decisions of the British courts—some of the most important of which have been influenced by European law or by the judgments of the European courts. The advances we have made on equalities, employment rights, a number of consumer items and the environment, and indeed on issues such as intellectual property and digital protection and so forth, have been in large part—not entirely; I will not overstate the case—affected by European law, now called retained EU law, or the European courts’ own judgments which have been followed by the British courts.

In the exchange between the noble Lord, Lord Callanan—he is not here at the moment; I welcome the noble and learned Lord, Lord Bellamy—and the noble Lord, Lord Krebs, the noble Lord, Lord Callanan, said that the courts will go on interpreting cases as they have done from time immemorial. However, from time immemorial, the courts have interpreted the law on the basis of what is on the statute book at that time. They continue to do so until that law is changed by this Parliament. The implications of parts of Clause 7 are that that will no longer be the case; that the courts will need to have less regard to the types of cases that arose because they were influenced, at least in part, by European law; and that European decisions will not need to be held in the same regard in future. That is the purpose of Clause 7, which is why my amendment would delete it.

I largely agree with the noble Baroness, Lady Ludford, that it could be rewritten—we do need some guidance on case law—but this is taking it in entirely the wrong direction and destabilising what has, from time immemorial, been the basic role of the British courts in interpreting legislation. If the Government and Parliament change the law, that changes it; some of those cases no longer have the same effect as they do at the moment. However, if we take Clause 7 as it stands, we are undermining a number of improvements in the conditions of our people and, at the same time, undermining the credibility, consistency and historical role of our courts. I therefore suggest to the Government that they should remove this clause. If the Bill proceeds—noble Lords know that I am not in favour of it—the Government could come back with a rather more sensible Clause 7. However, as it presently stands, it is one that we ought to oppose root and branch.

The role of our legal system is being undermined by a political doctrine that has yet to find its way into the legislation and the statutory law of our land. That is a dangerous road that we should not go down; I therefore suggest that we remove Clause 7 and think again.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have no legal training, so I going to rely on noble and learned Lords to tell me whether I have understood this whole section properly. It seems a bit odd.

In contrast to the first clauses of this Bill, which have been designed by the Government to take power away from Parliament—all the decision-making process and scrutiny—Clause 7 seems designed to outsource the task of making sense of the huge legal mess in the Bill. It is wrong on many levels but, in particular, it calls on judges to make political decisions that Parliament ought to take instead. The Bill is potentially going to create a huge legal mess; it does not seem fair for the Government to outsource this issue. That is worrying enough on its own, but it is all the more worrying because of the way in which this Government have demonised lawyers and judges over the past two or three years. They have been scapegoated at every twist and turn of the Brexit process. It has been a nightmare to see people who clearly have our best interests at heart being demonised in this way.

Clause 7 seems to have a very specific purpose. Forgive me if my language is oversimplified but, quite honestly, the Government are making a huge legal mess and are going to ask other people—judges, lawyers and the courts—to sort it out for them so that those people will take the blame when it all falls apart. Can the Minister explain whether I have understood it properly?

[Baroness Chapman of Darlington (Lab)]

My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.

There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of 31 December 2023 might mean something different from what they meant when they were passed and from how courts have interpreted them if they have been considered by the courts previously. They will mean something else after the end of this year.

From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.

I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.

We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:

“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”,


before going on to list other things.