Draft Challenges to Validity of EU Instruments (EU Exit) Regulations 2019

Chris Heaton-Harris Excerpts

Monday 18th March 2019 General Committees

[The Parliamentary Under-Secretary of State for Exiting the European Union (Chris Heaton-Harris)]

I beg to move,

That the Committee has considered the draft Challenges to Validity of EU Instruments (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship, Mr Davies; I believe this is a first for me as a Minister. I am slightly reticent as to any rulings that you might make. We have interesting times when people are in the Chair in this place at the moment.

The draft instrument is now the third that I have had the pleasure of debating under the affirmative procedure. A motion to consider the same regulations was passed in the other place just last week. The draft regulations are part of the Government’s wider programme of secondary legislation to ensure that the UK’s legal system continues to function effectively when we leave the European Union. They will take effect on exit day, or, if an implementation period is agreed, at the end of that period.

The overall intention behind the draft regulations is to make sure that validity challenges that originate in our domestic courts before exit can continue to be heard after exit. They will do that by making provision for UK judges to have jurisdiction to hear those cases. At present, they do not have that jurisdiction; only Court of Justice of the European Union judges have the right to deliver judgments on validity. Questions of validity arising in domestic courts must be referred to the CJEU for judgment.

The draft regulations mean that domestic judges will not be dependent on the judgments of CJEU judges to make rulings in domestic cases. Domestic judges will be empowered to make rulings independently of the CJEU, using the same grounds as are currently set out in article 263 of the treaty on the functioning of the European Union: a lack of competence; infringement of essential procedural requirements; infringement of the treaties or of any rule of law relating to their application; or a misuse of powers. I bring to Members’ attention that the number of validity challenge cases referred by UK courts to the CJEU is extremely small. Over the last five years, only 12 cases have been referred by the UK courts, and only one has been partially successful.

As I mentioned, the intention behind the draft regulations is to ensure that access to justice is not restricted after exit. Without the draft regulations, the effect of the European Union (Withdrawal) Act 2018 would be that pending cases for which references have already been submitted to the CJEU would not be able to continue. Indeed, whether the CJEU will continue to rule on validity cases submitted by the United Kingdom remains uncertain. The draft regulations will make sure that these pending cases can continue. At the last count, there were only three such cases.

[Vernon Coaker (Gedling) (Lab)]

It would be interesting for the Committee to know what those three cases are. Will the Minister go on to them?

[Chris Heaton-Harris]

I will happily go on to those cases. They are three basic tax cases: C-182/19, brought by Pfizer Consumer Healthcare, concerning the tax classification of certain therapeutic bandages; C-677/18, brought by Amoena, concerning a tax classification for accessories for artificial body parts—actually, mastectomy bras; and C-612/16, brought by C & J Clark International, concerning the anti-dumping duty and the import of certain leather footwear originating in the People’s Republic of China and in Vietnam. That last one was actually nearly a constituency case of mine. I hope that that helps the hon. Gentleman.

As I said, the intention behind the draft regulations is to ensure that access to justice is not restricted after exit. Without the draft regulations, the effect of the EU withdrawal Act would be that pending cases for which references have already been submitted to the CJEU could not continue. I have said that it remains uncertain whether the CJEU will continue to rule on validity cases submitted by the United Kingdom.

The regulations also cover cases where a domestic court has not yet made a reference to the CJEU but was planning to do so, and any case, other than cases begun before exit, in which a validity challenge may arise. That means that where claimants have brought a case before exit day that hinges on the validity of an EU law, there will be a mechanism in place to ensure that rulings on validity can be provided domestically. The regulations provide that where domestic judges find that an EU law was made invalidly, they will have the jurisdiction to declare it void. The effect of a declaration of invalidity will be that the law is not valid for the purposes of migrating to the UK statute book—in effect, there was never a retained EU law version of it.

I highlight to hon. Members the fact that my Department has worked closely with the Ministry of Justice in developing these regulations. In particular, officials from my Department have worked with judicial policy officials to ensure that both judges and Her Majesty’s Courts and Tribunals Service are aware of these changes and can manage any change in workload accordingly. Given the historical number of cases that I referred to earlier, my officials expect there to be a very limited number of potential cases aside from the three currently pending, which I have just talked about.

There are two final elements to the regulations that I would like to touch on. Regulation 5 stipulates that the courts must give the appropriate UK authorities notification of their intention to declare an EU law void, and regulation 6 stipulates that any UK authorities have the right to be joined as a party to any proceedings in which these regulations apply. In these regulations, “the relevant UK authorities” is defined as

“a Minister of the Crown (or a person nominated by him), the Scottish Ministers, a Northern Ireland department, and the Welsh Ministers”.

The effect of regulation 5, therefore, is that UK Government Ministers and all the devolved Administrations must be informed when a court is planning to issue a declaration of invalidity.

That particular requirement of the regulations was suggested by the Scottish Government following consultation with them on our proposals. Although the laying of this statutory instrument did not require formal consent from the devolved Administrations, my officials and I were keen to ensure that they were given ample opportunity to provide their views. As I said, as a direct result of this engagement we considered it appropriate that all the devolved Administrations, not just the Scottish Government, be given the right to be notified and be joined as a party to a legal case, given that EU law can directly relate to their respective devolved legal competences.

I have of course thanked the devolved Administrations for their extremely helpful input and received letters from both the Welsh and Scottish Ministers responsible for EU exit, testifying that they are content with these regulations. I would be more than happy to elaborate on any aspect of the regulation that the Committee might find useful. I hope that all members of the Committee will agree that the draft regulations are necessary and important to ensure that courts in the UK can continue to administer justice effectively once we leave the European Union.

--- Later in debate ---

[Vernon Coaker]

I agree with that. It is very well put and is a question for the Minister to answer, because it goes to the heart of what we are asking.

My final point in this brief contribution is important. What happens if the CJEU—I need to be careful here or I will confuse myself—finds a pre-exit provision of EU law to be invalid? It will cease to be EU law, but will it continue here? The CJEU will have found an existing piece of EU law, which, presumably, we have retained, invalid, so it will not operate in the rest of Europe, but, because it is retained, we will not have the opportunity—or will we?—to strike it down. Or will it simply continue here, even though it has been struck down in the rest of the EU, if the Minister understands me?

[Chris Heaton-Harris]

indicated assent.

[Vernon Coaker]

I think that is a really important question. On this invalidity in one part of the EU versus validity, the Committee, and certainly the people who read our proceedings, would find it helpful if the Minister explained that in non-legalistic terms so that people like me, if not anybody else, could more properly understand it.

Nobody has ever discussed this with me, and I have no idea whether anybody will, but I just know that, even though there are only three or four or maybe five or six cases, if a case turns up in one of our constituencies it becomes a very big deal. I do not want to be in a position—neither does anybody on the Committee—where somebody says, “Did nobody ask what this meant in terms of validity of EU law and retained law, or who could strike it down, or what the role of our courts was?” The Minister remarked on this, as did my hon. Friend the Member for Sheffield Central from our Front Bench, but a couple of answers to the questions posed by the hon. Member for South Norfolk and me would be helpful to our deliberations.

[Chris Heaton-Harris]

I thank the various members of the Committee and the shadow spokesman for their points, questions and contributions. I attempted in my opening speech to be relatively brief. Unfortunately, some of the questions raised are relatively complicated, so I am afraid my concluding remarks might take slightly longer.

I will go through some of the points raised. To give an example, one case that I mentioned was partially successful, and I should go into more detail so that people can understand exactly what sorts of case have been subject to validity changes in the past. The one that was partially successful was a tax case submitted by the first-tier tax tribunal. The case concerned the validity of regulations imposing anti-dumping duties on shoes containing specific leather parts. The hon. Member for Gedling is completely correct: such cases are very particular to certain Members of Parliament. I come from Northamptonshire. Shoe manufacturing is a big deal in my part of the world and the case was a big local news story at the time. The CJEU found that, although parts of the regulations were invalid, the parts imposing the anti-dumping duties were still valid, which is why the ruling was partial.

The claimant in the case, Clarks the shoemaker, a manufacturer, claimed that the EU had committed an infringement of an essential procurement requirement on the basis that the Commission had not adjudicated upon claims for market economy treatment and individual treatment by certain Chinese and Vietnamese exporting producers. The claimant argued, therefore, that the regulations imposing anti-dumping duties on specific footwear containing uppers—which, as members of the Committee will know, are the parts of the shoe that cover the toes, the top of the foot, the sides of the foot and the back of the heel—made from leather, and originating from Vietnam, China and Macao, were invalid.

The CJEU found that two EU regulations were partially invalid, but that specific requirements of regulations imposing the anti-dumping duties were still valid. In other words, the hon. Gentleman is quite correct. Although it is easy to brush over the effects of the judgments in a couple of sentences in Committee, they are quite significant judgments for big manufacturing companies across our constituencies. He and my hon. Friend the Member for South Norfolk were right to raise the questions that they did.

The first question is, does the measure reduce access to justice in certain ways? No, it does not. It allows cases begun before exit to continue largely as at present. Without regulations, it would not be possible to continue a validity challenge begun before exit. The decision that it will not be possible to challenge the law on the basis of validity after exit was taken and voted upon by Parliament when the EU withdrawal Act passed.

Another question was, what will happen if the CJEU rules after exit that EU legislation was invalidly made? Will that invalid legislation remain on the UK statute book? The answer is yes—decisions by the CJEU will not affect retained European law. The hon. Member for Gedling asked what EU retained law is. It is a snapshot of all European law taken the day we leave the European Union. It is being done by the National Archives, and will be accessible to every person in this country. I have been to visit the programme that is doing this. I promise the Committee that not only is it on budget, on time and able to do its job; it is ready to go now. There will therefore be a body of retained EU law that people can interrogate from their homes, should they wish to do so.

Even if the CJEU decides to void legislation after exit day, that law will remain on the UK statute book as retained EU law, because the European Union (Withdrawal) Act will take a snapshot of EU law as it stands on exit day, and all law on the UK statute book at that time will be valid as a result of its being made law under the Act. After exit, it will be for Parliament to decide whether and how to diverge from EU law, or indeed perhaps to take note of what might have happened at the CJEU, and to take action that flows from that.

Another question—raised, I think, by the hon. Member for Sheffield Central—was, why do the regulations not go further and include provision for future rulings of the CJEU to be taken into account, or provision for there to be consideration of future rulings? The decision to extinguish validity challenges domestically is coherent with the Government’s intention to re-establish UK parliamentary supremacy over UK law after exit. After exit day, it should and will be for Parliament to decide how, when and whether the UK should modify retained EU law.

[Mr Bacon]

The Minister is being very clear and has, to some extent, put my mind at rest. I have no issue with the idea that our domestic courts cannot challenge the validity of EU retained law—for these purposes, domestic law. In any case, an ability on their part to do that would seem to me to be a dodgy and suspicious foreign import to English jurisprudence, so I have no problem with that at all. I suppose what I am really trying to get at is simply whether I am correct in supposing that the SI does not purport in any way to limit at all the ambit of the judicial review of administrative action of any law, including the law to be imported as EU retained law into domestic law.

[Chris Heaton-Harris]

I can absolutely give my hon. Friend that assurance.

Returning to why the regulations do not go further, the statutory instrument could not act in contradiction to the explicit intention of the withdrawal Act. It could not, for example, make provisions so that UK judges followed validity rulings of the CJEU, or so that future rulings of the CJEU on validity would mean that retained EU law was invalid.

I hope that I have answered a couple of the questions. I am wary in that I might not have tackled everybody’s questions, so, as I begin to conclude, if I have missed anybody I would very much appreciate it if they let me know. My hon. Friend the Member for South Norfolk talked about an ouster clause. We have copied the CJEU grounds, and cannot currently challenge validity for any other reason. I hope that he is now completely satisfied on those grounds.

The regulations aim to ensure the effective continued delivery of justice as we leave the European Union. As such, they are an important part of the Government’s preparations for the UK’s withdrawal from the European Union. As such, I commend them to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Challenges to Validity of EU Instruments (EU Exit) Regulations 2019.