European Union (Withdrawal) Bill

Dominic Raab Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Paul Blomfield]

The right hon. and learned Gentleman is right, and that is what we seek to address with amendment 306.

I will briefly address some of the other amendments in the group. We support new clause 14, in the name of my hon. Friend the Member for Nottingham East (Mr Leslie), as it sensibly calls for a report to be laid before Parliament on the interpretation of EU law during a transitional period.

We also support amendment 137, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, as it seeks to have UK courts pay due regard to any relevant decision of the ECJ when interpreting the new category of retained EU law.

Amendments 202 and 384, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), would allow matters pending on exit day to be referred to the ECJ, which is clearly common sense, and we are pleased to support the amendments. We also support amendments 203, 353 and 354, in the right hon. Gentleman’s name, on the definitions of EU retained law. Amendment 357, tabled by the hon. Member for Bromley and Chislehurst (Robert Neill), raises important issues, and I look forward to the Minister’s clarification. We support amendment 358, which would help with the interpretation of EU retained law.

I end on the same note on which I began by urging the Government to accept amendment 278 and its consequential amendments and, in doing so, to put aside their obsession with the ECJ so that we can secure the effective transitional deal with the EU that they, we, business and trade unions want to achieve.

[The Minister of State, Ministry of Justice (Dominic Raab)]

It is a great privilege and pleasure to speak on behalf of the Government on this essential Bill, and particularly on clause 6 and the various amendments proposed to it. The Bill is complex, but at root it boils down to achieving two basic but fundamental objectives, which it is worth bearing in mind as we consider the clause and amendments.

The first is that we are delivering on the referendum by taking back control over our laws, which is a major opportunity; that was the No. 1 reason why people voted to leave the EU in the referendum. The second thing that the Bill does is make sure there is legal certainty, with a smooth transition for citizens and businesses, mitigating one of the key risks of Brexit, which I believe is felt by people whether they voted leave or remain.

[Sir Edward Leigh (Gainsborough) (Con)]

It is essential that the Supreme Court has certainty. The first part of clause 6(2) is admirably clear:

“A court or tribunal need not have regard to anything done on or after exit day by the European Court”.

Why then have the Government included the following phrase at the end of the provision:

“but may do so if it considers it appropriate to do so”?

I think Lord Neuberger has a point, and I give the Minister an opportunity to make the Government’s position clear.

[Dominic Raab]

I thank my hon. Friend for that, and I shall come to that point a little later. The basic point that I respectfully make to the House at the outset is that the various clauses and amendments should be judged according to those basic strategic objectives: taking back control over our laws and making sure that there is a smooth legal transition, which I believe is my hon. Friend’s point.

Clause 6 serves both objectives. It sets out how, once we have taken back control over EU law, retained EU law should be interpreted on and after exit day. It makes it clear that once the UK leaves the EU, domestic courts will not be able to refer cases to the European Court—an affirmation of the supremacy of our own courts and our own legal order.

[Mrs Maria Miller (Basingstoke) (Con)]

My hon. Friend is making a powerful case. The Select Committee that I chair has looked at the implications for equality law. At the moment, individuals can take cases to the Court of Justice of the European Union and gain decisions there that may have a great impact on their lives, but they will not be able to do that in the future. How should the Government look further at how domestic courts might be able to assess the compatibility of UK law with equality law, to make sure that in the future we do not have any problems in the way our law develops in this area?

[Dominic Raab]

First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised.

The point I was making before my right hon. Friend’s intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.

[Mr Grieve]

rose—

[Dominic Raab]

May I just finish this point, because I am at risk of answering the question before my right hon. and learned Friend puts it? As I say, UK courts will instead be able to take those post-exit judgments into account when making their decisions, if they consider it appropriate to do so, as they can, of course, with judgments of courts from other jurisdictions—common law, around the Commonwealth and elsewhere.

[Mr Grieve]

A number of different points feature in all this, but there is one point about the legal certainty, which was raised earlier. It is one thing to be able to take a case to the Supreme Court, but under a previously set up regime people could take it as a reference to the ECJ. Have the Government considered the propriety issues on removing that right for a case that is current? There is an issue to address there. The Government may be able to provide precedent and justification for what they are doing, but the issue troubles me. This strikes me as an odd way of going about things simply for the sake of trying to get rid of the ECJ in one fell swoop, which I think will be rather difficult in any case for other reasons.

[Dominic Raab]

I hope that I can give my right hon. and learned Friend some reassurance as the Committee makes progress. Some of what he says relates to clause 5 as much as to clause 6, but let me have a go at addressing it today. We may well return to it next week.

[Hilary Benn]

The Prime Minister has accepted that in a transitional period, the European Court of Justice would govern the rules of which we are part. Will the Minister explain to the Committee how that is compatible will clauses 5 and 6, which say that the ECJ will have no further sway after exit day, which the Government propose to set as 29 March 2019? Do the Government intend to amend the Bill as it proceeds through Committee to reconcile those two things, or do they propose to do it in the new Bill that the Secretary of State announced yesterday?

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[Dominic Raab]

I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.

[Mr Leslie]

Will the Minister give way?

[Dominic Raab]

If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—

[Mr Kenneth Clarke]

Will my hon. Friend give way?

[Dominic Raab]

I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled.

I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty—I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all—and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union’s pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.

[Sir Oliver Letwin]

Will my hon. Friend give way?

[Dominic Raab]

I am going to make a little more progress, but I will give way to my right hon. Friend in due course.

The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court—and, indeed, the High Court of Justiciary in Scotland—will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way.

We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.

[Mr Kenneth Clarke]

The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally—

[Mr Clarke]

They are. It may not be agreed by Eurosceptics, but that is Government policy, supported by the official Opposition. Why is it not in the Government Bill?

[Dominic Raab]

I will come to that precise point in the context of new clause 14, which has been tabled by the hon. Member for Nottingham East (Mr Leslie). The proposed change refers to the transitional period after the UK exits the EU. I thought that the hon. Gentleman put his points in a perfectly reasonable way.

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[Dominic Raab]

Let me finish my point.

Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.

[Mr Leslie]

I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?

[Dominic Raab]

I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.

I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.

[Sir Oliver Letwin]

I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not bound”. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?

[Dominic Raab]

I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.

[Mr Grieve]

rose—

[Dominic Raab]

I am going to make some progress, as I have given way once. I want to turn to some other amendments; otherwise, I will not give them the attention that they rightly deserve. I turn to amendment 357 in the name of the Chair of the Select Committee on Justice.

[Mr Grieve]

Can I not tempt my hon. Friend to give way?

[Dominic Raab]

My right hon. and learned Friend is very tempting, but not at this moment.

I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.

[Sir William Cash]

On the issue of potholes, will the Minister give way?

[Dominic Raab]

On the issue of potholes, I give way to my hon. Friend.

[Sir William Cash]

I mentioned to the Prime Minister during her statement a few days ago the bear trap that I can see coming up during the transitional period if we are not careful because of the manner in which the European Court operates by the purposive rule; I know my hon. Friend will understand. During the transitional period, when we are faced with a court operating under that rule and not by precedent, we could end up with the European Court dictating to us the basis upon which we would be operating during that period. Does my hon. Friend agree?

[Dominic Raab]

The Chair of the European Scrutiny Committee eloquently makes his powerful point. We need to avoid bear traps, cliff edges and potholes, and that is what this Bill does. That is a common goal that we all ought to be trying to pursue, on both sides of the House—whether we voted to leave or remain. I am not convinced that the amendment of the Chair of the Justice Committee would achieve that aim. Despite his best intentions and his rather ingenious drafting, I fear that the amendment would, in practice, create considerably more legal uncertainty, not less.

[Robert Neill]

I will not claim credit for all the ingenuity of the drafting, as I hope I shall make apparent in due course, but what if I told my hon. Friend that it is based on the work of the International Regulatory Strategy Group—one of the most distinguished groups of practitioners in this field? Would he think again about totally dismissing the thing, recognise it as a serious point that needs to be addressed here and engage with it?

[Dominic Raab]

I absolutely will not dismiss it. I am happy to think twice, thrice and as many times as my hon. Friend wants to talk to me about it. But let me make a couple of points to illustrate the risk of uncertainty that his amendment would cause. Subsection (A3) of amendment 357 begs the question of whether retained EU law restrains acts or omissions that start within the UK but that may have effects outside of it. Equally, subsection (A5) conflates functions conferred on public bodies with those of the Secretary of State. They are not the same thing. I sense that, underpinning this, he is trying to legislate in advance for unknown unknowns. I understand that temptation but if we go down that path, there is a countervailing but very real risk of increasing, rather than mitigating, the legal uncertainty. With respect, I hope that he can be persuaded to withdraw his amendment.

[Robert Neill]

In order that I might reflect on that as the debate goes forward, perhaps my hon. Friend would like to give me an example of the circumstances in which he thinks my amendment might increase the legal uncertainty, rather than assist it. I will obviously listen to that.

[Dominic Raab]

Well, I have just given two examples regarding subsections (A3) and (A5) of my hon. Friend’s amendment, but I would be happy to sit down with him and give some illustrative examples of how, in practical terms, I think that this is not actually the avenue or legal cul-de-sac that he wants to go down.

If my hon. Friend will forgive me, I will now turn to some of the other amendments in order that I give them due consideration in this important debate. In particular, I want to turn to amendment 278 and linked amendments 279 to 284 concerning exit day, which are from the Leader of the Opposition and other hon. Members.

The Prime Minister made it clear in her Florence speech that

“The United Kingdom will cease to be a member of the European Union on 29 March 2019.”

It is clear that the UK will leave the EU at the end of the article 50 process—some of the suggestions around the caveat are wildly unrealistic. The Government have tabled an amendment to make sure the drafting of the Bill is crystal clear on this point and to give the country—businesses and citizens alike—additional certainty and a measure of finality on it.

These amendments would replace that clarity and finality with uncertainty and confusion. They would alter the meaning of the term “exit day” in the Bill, but only for the purposes of the provisions of clause 6. For those purposes, but for those purposes alone, the UK would not leave the EU until the end of the transitional period. I am afraid that that would create damaging legal uncertainty, and the amendments are flawed. They would have the effect that, for the duration of any implementation period that might be agreed—and we hope one will be, sooner rather than later—all the important provisions on the interpretation of retained EU law set out in this clause could not apply; they could take effect, if I have understood correctly, only from the end of that period. Since we have not yet agreed an implementation period with our EU partners, the effect of the amendments would be to create an indefinite and indeterminate transitional period, which rather raises the question of whether the Labour party is really serious about facilitating the process of a smooth Brexit at all.

[Paul Blomfield]

Rather than seek to confuse the issue, it would be helpful if the Minister clarified whether it is the intention of the Government to accept the jurisdiction of the Court of Justice of the European Union during the transitional period. Yes or no?

[Dominic Raab]

The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty’s Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty.

My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear—I think this addresses the hon. Gentleman’s point—that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK.

Our priority must be getting the right arrangements for Britain’s relationship with the EU for the long term.

[Mr Leslie]

Will the Minister give way?

[Dominic Raab]

I have given way to hon. Gentleman before. I am going to make some progress.

That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption.

That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.

[Mr Grieve]

I actually agree—I should make this clear to my hon. Friend—about the issue of transition. I find it difficult to see how we can approach transition in the course of this Bill. However, there is an important underlying issue here, because, ultimately, our future relations with the EU will have a very powerful bearing, whether it is in transition or even after transition, on what we want EU law to do and how we want it to be interpreted, depending on transition, or indeed when we have completely gone, and on the extent to which we wish to be in comity with EU law. This is the elephant in the room, and it will have to be debated at some point as the Bill goes through, because some of it does not have to do with transition but has really to do with an entire future relationship, and it marries with great difficulty with the constant reiteration that the ECJ is somehow going to disappear out of the window.

[Dominic Raab]

I am grateful to my right hon. and learned Friend. I absolutely agree that the scope and parameters of the different options will need to be settled, but I think he has implicitly accepted and recognised that that is the subject of diplomacy. As has been said, we cannot put the legislative cart before the diplomatic horse, and I fear that that is what the amendment would do.

I now turn to amendment 202, which was tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and also relates to amendment 384. In leaving the EU, we will bring about an end to the direct jurisdiction of the European Court of Justice, and this Bill is essential to ensuring the sovereignty of our Parliament as we take back democratic control. We understand, of course, the desire to ensure a smooth and orderly exit and continuity for those who have commenced matters before the courts before exit. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) also made this point.

That is why we set out in our July position paper, “Ongoing Union judicial and administrative proceedings”, that we believe that UK cases before the ECJ on exit day should not be interrupted but should be able to continue to a binding judgment. We recognise that parties involved in such cases before the ECJ will have already gone through various stages of the process, potentially including making oral and/or written submissions. We do not think that they should have to repeat those stages before the UK courts, as this would not provide certainty but undermine it. The amendment would add further uncertainty rather than mitigate it. Pending matters before the UK courts will be able to reach a final judgment post exit without needing referral to the European Court. The Bill will convert directly applicable EU law into domestic law, so our domestic courts will then apply to those matters. In this way, we will have certainty about how the jurisdiction of the ECJ in the UK will be brought to an end.

Permitting the European Court to continue ruling on cases that were not before it procedurally on the day of withdrawal, as the amendment proposes, would give rise to considerable uncertainty. It would extend the period under which the European Court would continue to issue judgments in respect of the UK, and it is absolutely impossible to predict how long that may last. Furthermore, after exit day the UK will no longer be a member state of the EU. Under the EU treaties, the European Court itself can rule only on questions referred to it by member state courts, so it follows that without a new and separate international agreement, the references envisaged by the amendment would not, in any event, be possible.

[Joanna Cherry]

I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.

[Dominic Raab]

I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.

[Antoinette Sandbach]

I seek clarification on this point. Is the Minister saying that if a right of action has arisen before Brexit day that would have attracted, at the time that it arose, the full protections and a right to referral to the ECJ, that right will not be taken forward and those rights will, in effect, have been retrospectively changed?

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[Dominic Raab]

I understand the point that my hon. Friend is making, although I do not accept that characterisation. It is absolutely right that cases that are procedurally before the dock of the court, if I may put it like that—that have been lodged before exit day—will continue to conclusion. However, in relation to facts that may or may not give rise to a cause of action at an indeterminate point in the future, we would end up with a long tail of uncertainty if we went down the path that she suggests. I gently say to her that it will be possible to continue those cases before the UK courts because of the way in which we will retain EU law. There would be more, not less, uncertainty for citizens and businesses alike if we allowed the kind of indeterminate access to the court that she suggests.

[Mrs Gillan]

Surely, the Minister is ignoring the legitimate expectation that I have talked about. Frankly, if the Government do not look again at the matter, it will constitute an abuse of power, because it will remove from individuals rights that they legitimately expected to carry through to the end of a case.

[Dominic Raab]

My right hon. Friend makes an interesting point about legitimate expectations. I think there is an equally legitimate expectation, demand and need to have some finality to the legal and institutional arrangements that give rise to cases before the European Court.

[Mrs Gillan]

Will the Minister give way again?

[Dominic Raab]

Perhaps I can give way to my right hon. Friend when I come on to her amendments.

I turn to amendment 203, tabled by the right hon. Member for Ross, Skye and Lochaber, and to the related amendments 353 and 354. They would remove clause 6(7) and partially reinsert it into clause 14. Clause 6(7) provides key definitions of terms in the Bill that are crucial for the proper interpretation and full understanding of its content. Subsection (7) aims to alleviate any potential confusion and ensure that there is no vagueness or ambiguity about the different types of retained law mentioned in the Bill. That is vital for those who read, implement and interpret the Bill, because of the different effects of each type of retained law. The placement of the definitions in clause 6 is specifically designed to make the Bill easier to navigate and more user-friendly, by placing the definitions close to where they are used and deployed in the text.

[Seema Malhotra]

Will the Minister give way?

[Dominic Raab]

I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide.

Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid.

I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here.

The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts.

Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it.

I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment.

Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.

[Sir Oliver Letwin]

May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that

“the Supreme Court is not bound by any retained EU case law”.

It seems to us that he can have it one way or the other, so which is the governing clause—the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?

[Dominic Raab]

The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.

[Mr Grieve]

I understand that issue, but there is another one. Let us assume for the moment that there is no transition or relationship with the EU at all. Is the Court supposed to apply EU law as currently applied—purposively—or is it supposed to ignore the underlying purpose by which it has constantly been applied heretofore, and in that case, which rules is it supposed to apply? The judiciary have expressed a real concern about what they are supposed to do, because it is quite unclear what Parliament intends. If we forget about a transition or a future relationship, what are they supposed to do? They have rules for interpreting this law at the moment. Are they supposed to stick to those rules when they no longer have an underlying purpose?

[Dominic Raab]

I have to be careful about not pre-judging or prejudicing what the courts decide to do, particularly given that the thrust of the Bill is to make sure that judges have autonomy and discretion. The reality is that the issue is dealt with in the Bill. It is possible for the UK courts, in relation to retained case law, to look at the underlying purpose or intention of any piece of legislation or any principles that have been articulated. Moving forward, they are free, of their own volition, to depart from any precedence in the usual way. That already applies in relation to wider common law jurisdictions. The question I would put back to my right hon. and learned Friend is: why on earth, when we are leaving the EU and given that we are an open and outward-looking country that does filter, take interest in and take account of different principles from different jurisdictions, would we put on an further elevated status the case law of the ECJ?

[Antoinette Sandbach]

rose—

[Dominic Raab]

I am going to make some progress.

[Antoinette Sandbach]

I may be able to assist the Minister with the explanatory notes.

[Dominic Raab]

That is kind, but I will make some progress; otherwise I will lose the thread in relation to amendment 303.

The amendment is at odds with the clear and certain position set out in the Bill, because it would continue to bind UK courts to some post-exit ECJ decisions and case law where the matters giving rise to the case have occurred before our exit. Those judgments would continue to be binding even after an implementation period. Strictly interpreted, the amendment would go further still. It would apply to anything happening before exit day and so would also include ECJ judgments on cases referred from outside the UK. For example, a preliminary reference made by another EU member state in relation to the interpretation of EU law might also fall within the scope of the amendment, if the facts of the case arose before exit day. The consequences would be far-reaching and risk creating considerable uncertainty and practical difficulties for the administration of justice.

UK courts and tribunals would continue to be bound by some new ECJ judgments for an indeterminate period. Those binding judgments could continue to be issued long after we have left the EU as cases continue to progress to the European Court from across the EU. Yet those judgments would not have formed part of the snapshot of retained EU case law that, under clause 6(3), will be binding on our courts, so far as is relevant, and subject to the rule in clause 6(4). By contrast, such post-exit judgments would bind our courts in all circumstances, including where the retained version of an EU regulation had since been modified by this Parliament or a devolved Administration. That would create foreseeable and entirely avoidable uncertainty, and it would not be necessary, because individuals whose cause of action predates our exit would, of course, continue to be able to take their case to the domestic courts, even if after exit they cannot reach the European Court. That is the fundamental point in relation to the procedural framework.

I now turn to amendment 304, tabled by my right hon. Friend the Member for Chesham and Amersham, in relation to retaining ECJ referrals and jurisdiction for anything that happened before exit day. In leaving the EU, we will bring an end to the jurisdiction of the ECJ—we have made that clear. The proposed amendment would frustrate that objective, because our courts could continue to make references to the ECJ in relation to cases where relevant matters have occurred before our withdrawal from the EU. As a result, different rules and processes would apply for those cases, compared with those where the relevant circumstances arose after exit day. That would, I fear, give rise to more not less uncertainty, because it would be impossible to predict for how long UK courts would continue to be subject to binding judgments from Luxembourg.

When we exit the EU, we will know exactly how many pending UK cases are registered with the European Court, awaiting a preliminary reference and thus covered by any proposed agreement we have with the EU on the treatment of pending cases. That is important to deliver certainty about how and when the Court’s jurisdiction in the UK will be brought to an end. The amendment would remove that certainty. Like amendment 303, it is not necessary. Individuals will not lose their ability to vindicate their rights in court after exit. They will be able to take such cases to our domestic courts.

Forgive me, Sir David, but I thought it necessary to address my right hon. Friend’s amendments in detail. Equally, I want to say that I recognise the eloquence and the force with which she champions her constituents. Ministers will take away the underlying issue that she has brought and powerfully moved for consideration. I hope that on that basis she will not feel she needs to press the amendment.

[Mrs Gillan]

I am following the Minister’s arguments very carefully, with helpful interventions from some of my colleagues. I appreciate that this is a very tricky matter, but it does relate to my constituent. I am therefore grateful that the Minister has undertaken to take the proposal away and look at the principle in relation to this case, because I feel that it would be most unjust not to do so. I have no love for the European Court of Justice and I want the Bill to go through, but not at the cost of justice for my constituent. This case has thrown the matter into stark relief. I am grateful to the Minister for that undertaking and I look forward to talking to him further on the matter.

[Dominic Raab]

I thank my right hon. Friend for her constructive approach. We will take that consideration forward after these proceedings.

I will now rattle through the final amendments, so I have done them all justice and given them due consideration. I will turn next to amendment 306, tabled by the Opposition. Clause 6(2) states that our courts are no longer bound by decisions of the European Court after our departure or required to consider in future cases, although they may do so if they believe it to be appropriate. Clause 6 is a vote of confidence in our judiciary: its independence and its expertise. Using similar exercises currently undertaken with court judgments in other jurisdictions, our courts are best placed to decide to what extent, if any, they pay regard to EU law in any case before them.

The intention of amendment 306 is to remove that discretion from clause 6 and replace it with a duty that sets fetters on which aspects of EU case law our judges must consider, although only in certain areas. In practice, that would create a presumption that EU decisions should be followed in those areas. That is the clear intention, but it is inappropriate. It would undermine the purpose of clause 6 in both its fundamental objectives. It would frustrate the return of control to this House and the UK Supreme Court and expose the UK to substantial additional and unnecessary legal uncertainty.

[Antoinette Sandbach]

Will the Minister give way?

[Dominic Raab]

I am going to make a little bit more progress. I have given way to my hon. Friend.

The singling out of these areas of law appears somewhat arbitrary, given other fields the amendment might equally apply to. It would lead to a splintered approach to interpretation of the law and a fragmented UK jurisprudence—more uncertainty, not less. In any case, it is totally unnecessary. The UK has a proud history of ensuring the rights and protections of individuals in this country. The UK has high standards of protection domestically in relation to workers’ rights and human rights. We are recognised as a world leader in delivering robust, rigorous health and safety protections. That record and that commitment is not dependent on our membership of the EU; it is dependent on hon. Members in this House and their eternal vigilance. It will continue to be dependent on that after we leave. I hope that the right hon. Member for Islington North (Jeremy Corbyn) and his colleagues in the Labour party will not press amendment 306.

Finally, I turn to amendment 358 tabled by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which sets out the ability of UK courts to have regard to material used in the preparation of retained EU law. I hope that this is the point at which I give some reassurance to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). Currently, when interpreting EU law domestically, our courts will look at the language used, as well as considering the legislation’s recitals, legal basis and other language versions to inform their interpretation. We do not want to change how this law is interpreted or to create any fresh uncertainty about its meaning, so the Bill provides for the courts to continue that approach. Clause 6 provides that questions on the validity, meaning or effect of retained EU law will be decided in accordance with retained case law and general principles of EU law. This requires taking a purposive approach to interpretation where the meaning of the provision is unclear, considering relevant documents such as the legislation’s treaty legal base, working papers that may have led to the adoption of the measure and the general principles of EU law. I hope that reassures my hon. Friend the Chair of the Select Committee and that he will not press his amendment.

[Mr Duncan Smith]

My hon. Friend is making a powerful case on each of the amendments, but I am among those concerned about the confusion around the cut-off line. The general principles he just talked about will shift and change. Is there a point by which, when we reference the principles and those principles have changed post-exit, we do not consider them to be the principles we referenced rather than the principles that existed before and are now not modified? At what point do we have the cut-off point?

[Dominic Raab]

My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns.

To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.

[Joanna Cherry]

I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society.

I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit.

Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as

“any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.

We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment.

The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.

--- Later in debate ---

[Dominic Raab]

The hon. Gentleman was not here for large parts of the debate; if he reads Hansard, he will see that that was addressed very squarely.

[Wes Streeting]

For the benefit of viewers who have just tuned in on BBC Parliament, I am happy to give way to the Minister a second time if he would like to state very clearly for the record whether, in his view, on that fundamental point, the jurisdiction of the ECJ will apply during the transition period. It is a very simple question and it only requires a yes or no answer, but he will not respond.

--- Later in debate ---

[Wes Streeting]

I have to agree with my hon. Friend, but I am happy to be generous and give way to the Minister again. This is a very simple yes or no question.

[Dominic Raab]

The hon. Gentleman is very kind, but neither he nor the hon. Member for Ilford South (Mike Gapes) has been in here for the entirety of the debate. This issue has been addressed squarely. We are not going to pre-empt or prejudice—[Interruption.]

[The Temporary Chair (Sir David Crausby)]

Order. I call Wes Streeting.

--- Later in debate ---

[Mr Grieve]

I will pick up two or three points that have been made in this important debate. There have some magnificent contributions, particularly from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I will start with what he had to say because it is central to the debate.

I appreciate what the Government have been trying to do with clauses 5 and 6 on the way in which retained EU law should be interpreted. I agree with my right hon. Friend that the wording is opaque, although I think that I understand the Government’s intention on the role and supremacy of the Supreme Court in developing law, but that still does not get us away from the fundamental problem that EU law is different from our law. Its rules of interpretation are different and its purpose is different.

We will come back to that problem right through this Bill, whether on the charter of fundamental rights or the general principles of EU law. We cannot just take EU law and drop it into our law without leaving guidance on what the Government expect that law to be used for. I worry that the lack of explanation is most peculiar. It is not a question of wanting to keep EU law—I assume that it will all ultimately go away, anyway—but in the meantime there is a lack of clarity, and I can well understand why the judiciary, particularly the senior judiciary, are troubled by the lack of guidance. It is almost as though the Government have found it too embarrassing to want to grapple with it. They want to maintain continuity, but they do not want to maintain the implication of continuity because that is a difficult message to sell to some Conservative Members.

We will really have to look at this as we go through the Bill, and I am quite prepared to try to help the Government to find a way through. It is not that I want to keep its aura, and there are many Conservative Members who do not like it at all, but the simple fact is that we need to look at it.

The other issues that have been raised are absolutely right, but they are not relevant to this debate. We do not have the slightest clue what the transitional arrangements will be. We will have to have a completely separate piece of legislation to sort that out, and I suspect it will take a long time to go through this House. Ultimately, if we have a long-term agreement, there will be an interesting issue about whether we will be instructing our courts to mirror EU law so as to maintain comity with the Court of Justice of the European Union or risk constantly having to readjust our legal frameworks for the sake of that deep and special relationship.

I do not want to disappoint some of my right hon. and hon. Friends too much, but the harsh reality is that our geographical location and our desire to have a close trading relationship with the European Union will inevitably mean that decisions of the Court of Justice of the European Union continue to have a major influence on our law here—I am afraid that was rather disregarded in last year’s referendum. I think that it is called globalisation, and we will have to return to that as we go along.

[Dominic Raab]

We have listened carefully to all hon. Members in the various contributions and concerns that have been raised, and taken account of the amendments in this group. There are issues we will take away for further consideration. I refer in particular to what my right hon. Friend the Member for Basingstoke (Mrs Miller) said about the Equality Act 2010, and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) raised her issue powerfully and constructively. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) also raised a number of points, and I think that we can address those. I think that they are covered by clause 6, but I will take them away and we will work further to make sure we provide the clarity that is required.

--- Later in debate ---

[Wes Streeting]

rose—

[Dominic Raab]

I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.

[Mr Leslie]

I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transition” pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be—not today.

[Dominic Raab]

rose—

[Mr Leslie]

Oh, perhaps I am wrong. I will give way, of course.

[Dominic Raab]

I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.

[Mr Leslie]

Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote.

Question put, That the clause be read a Second time.