European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say a word or two about the two amendments in which I had an interest. I am sorry that my voice is not quite up to it, but it is better than it was yesterday.

I am very glad that the situation now is that Parliament can act and get on with what is required. Clause 26 is the one I am interested in. Your Lordships will remember that the noble Lord, Lord Beith, moved an amendment to take out the provision which required a selection of courts to be made in a statutory instrument. I had understood that the Prime Minister had said that he wanted all courts to be able to deal with this matter in some way. By a majority of around 100, those in the House of Commons preferred that situation to what he said—that must be a matter of some interest. So far as I am concerned, I was extremely anxious to uphold what the Prime Minister said in his answer during the election.

Those in the Commons do not say that my amendment is unsuitable, but that it

“does not deal appropriately with the issue of domestic courts departing from the case law”.

But they do not say that their own provision is necessarily suitable either. I am sure that I, and all my noble and learned friends who spoke on these amendments, would be very willing to offer any help that may be required when it comes to promoting this statutory instrument.

[Lord Beith (LD)]

I wonder if I might be allowed to follow the noble and learned Lord, since we are discussing the amendments to Clause 26. He made such a bold and ingenious attempt to provide the Government with a reasonable platform on which they could deal with this problem.

I am faced with words from the House of Commons that my amendment would not leave an appropriate means of dealing with

“the issue of domestic courts departing from the case law of the European Court after IP completion day”—

but nor does the Bill as it stands. It relies on the use of a regulation-making power, under which any or all courts could be included, including lower courts which do not have the capacity to bind other courts and therefore can make many inconsistent decisions. It still leaves the Government with the power to, effectively, impose a different, unspecified test.

This is a very unsatisfactory situation, but the best thing that the Government can now do, since they have failed to accept either my amendment or that of the noble and learned Lord, Lord Mackay, is think very carefully before proceeding, because there is already sufficient statutory provision in place in the 2018 withdrawal Act, under which the Supreme Court and the High Court of Justiciary can do the job of deciding to depart from European case law. Should the Government wish to extend that to some other courts, perhaps to appeal courts, they will probably find sympathy and support in the House, but should they try to bring forward proposals by way of regulations of the kind that were widely discussed by very experienced colleagues around the House, they will meet resistance at that stage.