European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

Moved by

[Lord Beith]

21: Clause 26, page 30, line 13, leave out paragraph (b)
Member’s explanatory statement
This amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.

[Lord Beith (LD)]

My Lords, I am moving Amendment 21 on behalf of the noble Lord, Lord Pannick, who apologises that he is in court. I look forward to the contributions of the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Taylor, who has chaired our Constitution Committee’s proceedings on this issue. As the committee has pointed out, the clause that we are seeking to amend raises substantial constitutional concerns. I note that two former Lord Chief Justices are in the Chamber as well, so I look forward to an interesting debate.

After the end of the implementation period, the United Kingdom courts will still have to interpret a large body of retained European law. This necessarily will involve reference to the case law created by the Court of Justice of the European Union. This case law will continue to apply in our courts alongside any relevant domestic case law. However, in Section 6(5) of the European Union (Withdrawal) Act 2018—as noble Lords will remember all too well—we have already legislated to give the Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law, having applied the same test as they would have applied if they were departing from their own case law. The Government now want to give themselves the power by regulations to extend that ability to depart from established case law to other unspecified courts—which could under the terms of the Bill be any court in the land—to specify the extent to which, or the circumstances in which, the court is not to be bound by EU case law, and to substitute the Government’s view of what test should be applied by the court after consultation for the Supreme Court’s existing and well-established test.

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The noble and learned Lord, Lord Judge, alluded to the issue of precedent and the certainty it brings to the law of the United Kingdom, and he cited the case of Rylands v Fletcher. I recall that as long ago as 1985, in the case of RHM Bakeries v Strathclyde Regional Council, the late Lord Fraser of Tullybelton pointed out that Rylands v Fletcher was not the law of Scotland and he went on to express a judgment that said that it was not the law of England. The point is that with diverse jurisdictions and legal systems within the United Kingdom, there is already room for different sets of precedent and different applications of the law, and we simply have to take account of that. Precedent is a very important aspect of the common law, but it does not bring about uniformity. We have a flexible legal system in Scotland, England and Wales and indeed in Northern Ireland, and we can accommodate the sort of proposal that is being brought forward here in the context of this regulation-making power.

[Lord Beith]

Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?

[Lord Keen of Elie]

As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.

I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

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[Lord Beith]

My Lords, I found that a very disappointing response from the Minister, for whom I have great respect. It did not answer the question of which courts would now be part of the process and added to the list; it did not answer the question of what test the Government envisage being introduced through the process; and it did not answer the question of why this is not included in the Bill. The attempt to use the regulation process as an ex post facto defence of the fact that the Government have not come up with a policy yet, but would quite like to talk to some of us about what it might be in the future so that it can be put in regulations, is wholly unconvincing.

As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out, he was talking to the Government about this 20 months ago. There has been plenty of time to come up with a policy in the interim and not leave us in this situation where we are told, “It’ll be alright, we will bring in some regulations and discuss them with you all; all your concerns will be accommodated”. I do not think that they have been accommodated at all.

I welcome the intervention from the noble and learned Lord, Lord Mackay of Clashfern. As so often on these occasions, he pointed out that with a bit more work, maybe we could get somewhere and achieve something that is consistent with the Government’s intentions but meets people’s concerns.

There are times when Ministers have to recognise the level of feeling and concern which has arisen from significant quarters in the course of Committee proceedings. This has been a remarkable debate and, in the proceedings so far on the Bill, no other debate has brought out such intensity of feeling and concern, particularly from people with significant experience to contribute to the discussion. Ministers have to recognise this. We talk about consultation, and I think that some consultation is required between now and Report.

Certainly, we will want to reflect on what the Minister said on the possibilities—I was encouraged by the intervention of the noble and learned Lord, Lord Mackay —and how we can reconcile what the Government are talking about with the need for some degree of certainty around how the law is to be administered in future. We are certainly not there yet. I beg leave to withdraw the amendment.

Amendment 21 withdrawn.