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

Debate between Chris Heaton-Harris and Richard Bacon

Monday 18th March 2019 General Committees

[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.