Retained EU Law (Revocation and Reform) Bill

Lord Etherton Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I am going to speak briefly about Amendments 83, 84, 87, 87A and 87B. I do so as a jobbing barrister, with some diffidence, because I note that the noble and learned Lords who have put their names to these amendments have not yet spoken. Indeed, I do not think they are in the Chamber. I am against the provisions in the Bill, and I am going to outline my reasons.

When drafting legislation, we need to ensure clarity. Laws need to be clear, unambiguous and capable of being understood by members of the public, otherwise compliance is impossible. Furthermore, to ensure justice, advisers need a degree of certainty and predictability as to what the law is or is likely to be when they have to advise on it, otherwise, as I say, justice will not happen. When one applies those criteria to the provisions in the Bill, one becomes profoundly uneasy. The phrase found in new paragraph (b) in Clause 7(3), “any changes of circumstances”, is astonishingly broad. It would apply to any change of circumstance without any regard to degree or nature.

The same sort of criticism applies to new paragraph (c), on

“the extent to which the retained EU case law restricts the proper development of domestic law.”

But what do we mean by “proper development” of domestic law? Who is to judge what is proper? Are we to contemplate judge-made or statute law, which are extraordinarily different? Does this concept not drag judges into political and perhaps partisan areas? A determination by a judge on what the law ought to be is, in many senses, to intrude into a political decision that judges would be well advised to avoid.

Precisely the same criticisms apply to the word “influenced” in new paragraph (a) in Clause 7(4), to which Amendment 87 applies. They also apply to the phrase “would depart”, to which Amendment 87A applies. Giving practical interpretation or advice on the meaning of these words is almost impossible, which inevitably impacts on compliance by individuals and the doing of justice by the courts. For the reasons that I have briefly outlined, these proposed provisions, as presently incorporated in the Bill, are profoundly objectionable and should not feature in this legislation—but, in conclusion, I say that this applies to the entirety of the Bill.

[Lord Etherton (CB)]

My Lords, as a result of the lack of time to address the amendments to Clause 7 last Thursday, the noble and learned Lords, Lord Judge, Lord Hope and Lord Thomas of Cwmgiedd, are not able to speak to the amendments to Clause 7 in their names. As your Lordships will see, I have been asked to do so on their behalf. These are Amendments 83, 87, 87A, 87B, 90, 91 and 93. I will also support Amendments 85 and 88 in the name of the noble Baroness, Lady Ludford. A number of these amendments are quite technical so, rather than weary the House with detailed observations on each of them, I will take a broad approach, in the hope that the Minister will permit a meeting when the others can be elaborated further.

Broadly speaking, the amendments fall into two parts, the first of which comprises amendments to the provisions in Clause 7(3) and (4), about the circumstances in which the court may depart from retained EU case law and retained domestic case law—these are Amendments 83 to 89. The second group concerns the procedure on references of points of law arising from retained law in lower courts or tribunals—this is in Clause 7(8). Like many of the earlier provisions of the Bill that were discussed, the issue of legal certainty runs through the first group of amendments. They either involve removing provisions that create uncertainty, or invite the insertion of new provisions to bolster certainty and predictability. The noble Viscount, Lord Hailsham, referred to one of the most egregious of these tests: that of

“any changes of circumstances which are relevant to the retained EU … law”—

this is in Clause 7(3), which inserts new Section 6(5)(b) into the 2018 Act. I also cite another test:

“any changes of circumstances which are relevant to the retained domestic case law”—

this is in Clause 7(4), which inserts new Section 6(5ZA)(b) into the 2018 Act. These are too wide, too uncertain and, above all, subjective.

Looking at the issue from a slightly different perspective from those that have been debated in the past, I will concentrate, in broad terms, on the position of UK plc. Legal certainty is critical to the position of the courts of this country as one of the most important litigation centres in the world. The United Kingdom attracts international disputes of huge value and complexity because of the intellectual standard of the judges in our higher courts, the absence of corruption in the judiciary and, critically, the predictability and certainty of our legal principles.

This is true not only of general business cases but of particular specialist areas, such as intellectual property. These cases contribute very large amounts to our GDP through the engagement of lawyers, bankers, accountants, experts and other relevant disciplines. In its report, published on 7 December 2022, TheCityUK stated:

“Legal services contributed £30.7 billion to the UK economy in 2021”,


posting a trade surplus of £5.4 billion, and:

“Parties from 75 countries used the Commercial Courts in 2021/22”.


It continued:

“The UK is the largest legal services market in Europe (valued at £41 billion in 2021) and is second only to the US globally.”


Unpredictability and uncertainty in the law and dispute resolution put this pre-eminence at risk. As a country, we cannot afford to allow that to happen.

In large international cases, the claimants usually have a choice of places in which to litigate. The idea that existing law can be departed from because of any changes in circumstances which the court may consider relevant—which could include, for example, the political manifesto or aspirations of the Government of the day or some new government policy—would greatly undermine the attractiveness of this jurisdiction.

I will illustrate this briefly by reference to what, in the case of many major businesses, is one of their most important assets: their intellectual property. Our trademark law is derived entirely from EU law. Our Trade Marks Act 1994 gives effect to an EU directive. Since its enactment, the case law has been determined partly by EU case law, especially where there has been a preliminary reference to the Court of Justice of the European Union or an appeal to the Court of Justice of the European Union from the EU Intellectual Property Office, and partly by our domestic law in interpreting and applying the 1994 Act. In fact, there is a huge body of EU law relevant to trademarks; it therefore falls squarely within Clause 7 of the Bill and the amendments to the 2018 Act introducing the “any change of circumstances” test.

Large international companies, such as Sony, Nokia, Eli Lilly or Pfizer, to name but a few, which conduct their business in many countries across the world, generally have a choice as to the country in which they wish to bring their proceedings. Although, strictly speaking, each country can only make decisions limited to its territorial boundaries, a decision in any one of the major IP litigation centres, such as France, Germany, the Netherlands or the United Kingdom, will be accepted as determinative everywhere. The fact is that, if there is a broad, unlimited “change of circumstances” principle for departing from the existing law, one of the parties to the litigation will almost always invoke it. If they do so, and do so successfully, there is absolutely no certainty as to what would replace the existing law. All this would fatally undermine the certainty of our law and be a huge disincentive to litigating in this country when another is available.

The same is equally true of design law and registered designs. In this country, that law, set out in the Registered Designs Act 1949, has been substantially rewritten, particularly in relation to what is a registrable design, to give effect to an EU directive. This is also true of large parts of our law relating to copyright. The word “influenced” in the proposed new Section 6(5ZA)(a)—see Amendment 87—has been referred to earlier in today’s debates. It would, in some trademark, design and copyright cases, be difficult now to disentangle which parts of the law have been influenced by EU law and which are purely domestic in origin.

In the area of patent law, the same position applies in relation to supplementary protection certificates, which operate to extend the patent in certain circumstances. Litigation in these areas of the law can be of huge value and economic significance.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government’s position is that this is not a straitjacket. The courts are required to look at three things: the fact that the retained EU case law is made by a different court, whether there has been a relevant change of circumstances, and how the proper development of the common law should continue in future.

As to why we have not included other considerations—notably, legal certainty—the Government’s position, which noble Lords may or may not agree with but this is the explanation, is that once you write down the importance of legal certainty, that is potentially a recipe for passively doing nothing and continuing to be a rule taker for 20 years to come. That is not the consequence of withdrawing from the EU. The courts can continue to look at it, but that is the reason why the Government have drafted Clause 7 as it is.

I hope I have dealt with most of the issues raised about Clause 7 one way or another. There is the reference procedure, and noble Lords, and noble and learned Lords, have made the point that higher courts always have the discretion whether to take a case, and they should be able to decline it. I completely understand that point. The Government had thought that the ability of those superior courts—the higher courts or the Supreme Court—to decide whether what they were being asked to do was relevant and whether the point raised was of general public importance was sufficient protection and would enable them to decline to hear the case if that were so. I must say that the circumstances in which a lower court actually gets as far as making a reference and identifying a point of public importance that a superior court feels it should not hear seem to me, if I may say so, somewhat remote, but we can have another look at the drafting if there is a need for further reassurance. I cannot commit to changing it, but I can commit to looking at it and discussing it with the relevant persons.

[Lord Etherton (CB)]

My Lords, will the Minister please reply to the point I made? The situation may be such, as we know from bitter experience, that you can identify an important point of law in a case but, unless it is dispositive of the whole of it, it will lead to further expense and time. That may apply equally to this point of law as to any other. There is no special feature regarding points of law relating to retained law, as opposed to points of law in any case.

[Lord Bellamy (Con)]

That might raise the question of whether indeed it was relevant. You could say, “That’s not relevant here because it’s not dispositive”, or “It’s only one point among several”. However, I say to the noble and learned Lord that the Government will have another look at this. There is no point in having provisions that are not satisfactory in this regard.

That takes me to the law officer reference and intervention powers. On the essential points made by my noble friend Lady McIntosh about the position of the Lord Advocate, I hope she will bear with me. My understanding of the exact position of the Lord Advocate is probably not as good as hers and that of other noble Lords in the Committee. Essentially, the law officer reference power provides another mechanism for resolving these various points, and it gives the UK law officers and the relevant officers of the devolved Governments a statutory right to be considered and so forth. It does not extend the Lord Advocate’s powers to anything outside the devolved competence of the Scottish Government, any more than it does for the Counsel General for Wales or the Attorney-General for Northern Ireland. The Government’s view on this point is that the other law officers in the devolved Governments should be involved in matters that affect the devolved Governments and not matters that are retained UK law. That is the Government’s position.