European Union (Withdrawal) Bill

Hannah Bardell Excerpts

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

[Joanna Cherry]

That is what modern courts do. If the right hon. Gentleman cared to study the jurisprudence of the supreme courts of the United States, Australia or New Zealand, he would find that that is what courts in adversarial jurisdictions do. I sometimes wonder whether the right hon. Gentleman’s real objection, and those of his ilk on the Government Benches, is not to the European Union, but to the very idea of courts and the rule of law itself.

Anyway, as well as creating legal certainty and protecting the judiciary, amendment 137 is also important for protecting individuals’ rights. If the UK’s courts do not pay due regard to decisions of the Court of Justice, there will be no provision to ensure that rights in the United Kingdom keep pace with EU rights after Brexit or even to encourage that to happen. That could lead to rights upheld domestically lagging behind international standards, which I am sure we would want to avoid.

[Hannah Bardell (Livingston) (SNP)]

Does my hon. and learned Friend agree that we have already seen examples of the denigration of our rights, particularly in aspects of the Trade Union Act 2016? Without the safety net of the Court of Justice, there is a further risk of those rights being degraded.

[Joanna Cherry]

I agree with my hon. Friend, and that is probably why the TUC supports my amendment.

To keep rights up to similar international standards is particularly desirable in areas that require a degree of co-operation and reciprocity, such as consumer rights, equality protections and environmental standards. The Exiting the European Union Committee, of which I am a member, has heard much evidence recently about the importance of preserving rights protections after Brexit. EU case law has had an important impact on equality rights in the UK, and my amendment seeks to ensure that British courts will continue to pay due regard to that jurisprudence as our law develops. I urge all hon. Members to give amendment 137 their support in the interests of achieving legal certainty, protecting the rule of law, protecting the judiciary from political attacks and protecting our constituents’ rights.

I turn now to pending cases and amendments 202 and 203, which I am grateful to the Law Society of Scotland for drafting. There is currently nothing on the face of the Bill about what will happen to litigation pending at the time of exit day. There just is not anything. If there is, I am sure a Minister will point me to it later.

As the right hon. Member for Chesham and Amersham said, this is all about legitimate expectations. As I said when I intervened on her, if the Government do not move in the Bill to protect the legitimate expectations of litigants, they could find themselves being litigated against for failing to provide an effective remedy.

Of course, it would be objectionable on the ground of retrospectivity if a simple cut-off happens on exit day and if no consideration is given to pending cases, as other hon. Members have said. Such a situation is not without precedent. As I said in my intervention on the Minister of State, Ministry of Justice, the hon. Member for Esher and Walton (Dominic Raab), one precedent is the way in which the transition from the Privy Council to the New Zealand Supreme Court was dealt with, and I urge the Government to look at that. I urge all hon. Members carefully to consider the amendments designed to protect pending cases and pending litigation on exit day.