European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

Lord Beith Excerpts

Wednesday 25th November 2020 Grand Committee

[Lord Beith (LD) [V]]

My Lords, when the EU withdrawal agreement Bill was being considered in the House, the Constitution Committee had serious concerns about the provisions under which this statutory instrument is being made. We were concerned that the Bill left it to Ministers to decide which courts could depart from previous European case law on retained European law and what test they should apply when doing so. That has quite serious rule of law implications that were neatly illustrated by the Minister when he described the possibility of a range of factors being specified when courts are considering such matters, an option that helpfully, the Government in the end did not take. That is one of the good features of this statutory instrument.

These are not powers that we were content to leave in the hands of Ministers. There is the added problem that the powers could be extended to the lower courts whose judgments could not bind other courts—even to magistrates’ courts. This would lead to legal confusion. In a powerful debate in the House at Report, I moved an amendment drafted by the noble Lord, Lord Pannick, that we would return to the matter. The noble and learned Lord, Lord Keen of Elie, offered to table a compromise government amendment very much along the lines of this instrument, restricting the extension so that it would cover only the Appeal Court or its equivalents, and specifying that the test to be applied when deviating from previous case law was the same test that the Supreme Court would apply. But he was embarrassingly overruled by a higher authority in No. 10, apparently because the Prime Minister wanted no amendments to the Bill at all, presumably for broader political reasons.

The noble and learned Lord, Lord Mackay of Clashfern, indicated in a speech in that debate that the Prime Minister had in fact committed himself in the election to every court in the land being able to deviate from retained EU law. Anyway, we won the vote, but it was overturned by the Commons, so we were left with Ministers holding the power to choose the courts to which this would be extended and to choose the test that would be applied. Everything would depend on the regulations. As the Minister has pointed out, there was a consultation that revealed differences of view. The results were open to different interpretation depending on how you count those respondents who wanted no deviation from previous case law. That is not my view. While based on precedent, law has to evolve over time. For my part, the statutory instrument brings us to the outcome that I sought in my amendment, albeit by a very long way round.

I accept that these provisions may have avoided what could have been a bottleneck in the Supreme Court, as the noble and learned Lord, Lord Thomas of Cwmgiedd, warned. However, I am bound to question some curiously chosen words in Paragraph 7.5 of the Explanatory Memorandum:

“Extending the power to this limited list of additional courts will help to achieve our aim of enabling appropriate and timely departure from retained EU case law.”


Is that phrase in place to please the Brexiteers? Is it meant to be a signal to the courts that they should deviate as much and as soon as possible?

If so, I think that it creates false expectations, because I do not think that that is what the courts will actually do. The scale of activity will depend on how much litigation is brought forward and the courts can be expected to abide to apply the test of the Supreme Court with due regard to the facts, to precedent, and to the need to keep the law up to date with changing circumstances. I do not believe that the courts will be drawn into a rush to get rid of as much European case law as possible as quickly as possible. However, all in all, I think that the instrument is what is needed.