European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Bassam of Brighton (Lab)]

My Lords, I rather hope that the modest amendments in my name do not take the House two hours to deliberate over. They focus on a narrow set of issues relating to pending cases.

Amendment 62 would allow our domestic courts, subject to the terms of the withdrawal or transitional agreement, to refer cases to the CJEU after exit day if the course of action arose before exit day. Amendment 61 would require the Government to obtain from the CJEU and then publish a list of pending cases referred to domestic courts before exit day. Amendment 64 changes the definition of retained EU case law to include case law relating to pending cases referred to the CJEU before exit day.

These amendments were drawn from the Constitution Committee’s excellent report on the Bill and essentially aim to deal with two issues: first, pending cases in domestic courts that might have been referred to the CJEU and, secondly, pending cases already lodged with the CJEU before exit day. In the first instance I am really asking for the Government’s assurance that, in any withdrawal or transition agreement, they will seek to clarify whether domestic courts can continue to make reference to the CJEU in relation to cases that began before exit day. I can see that there has to be a cut-off point for references but it is the timing of that point which concerns me. What criteria will Ministers apply and how will these be written into the agreement in such a way as to guarantee, and not undermine, procedural fairness and access to justice?

It may seem that this is a small or insignificant matter but, given the wide range of issues that the court considers, I think not. After all, it looks at everything from trademarks to intellectual property rights, workplace rights and even the distribution of EU funds. Given that cases started before the Prime Minister triggered Article 50 are likely to be treated differently from those which followed it, it is surely important that principles of fairness and consistency enter into any agreement which the Government can sign.

The second type of pending cases, dealt with in Amendment 64, will be those that are already with the CJEU. In another place, the Solicitor-General argued that these cases would simply continue. That is fine as far as it goes but, as the Constitution Committee pointed out, the Government intend to provide for these pending cases to be covered in the withdrawal agreement and implementation Bill. But what happens to those cases if there is no deal? Would it not make sense to have a saving provision in the Bill saying simply that any case that is with the CJEU is determined to be treated as contributing to pre-exit case law, and in turn forms part of retained EU case law?

The Constitution Committee’s proposal that the Government should produce a list of cases on exit day that would be treated in this way made very good sense. To my way of thinking, that is a logical way of handling quite a complex set of legal issues, which are obviously well beyond my sort of competence as a non-lawyer. However, I hope that the Minister can satisfy my curiosity and set out how the Government intend to proceed. I also hope that he can satisfy the Constitution Committee, which I thought had a rather neat solution to the problem. Pending cases are of great value and will be of great interest to colleagues. I am hopeful that the Government can satisfy my simple concerns and provide us with an explanation that works. I fear that we will otherwise end up with something of a case law muddle. I beg to move.

[Lord Goldsmith (Lab)]

My noble friend is absolutely right that this is not a small or insignificant matter. It is an important one with rule-of-law implications. The starting point, as he explained, is his proposed Amendment 62 which, if agreed, would add a new paragraph (6C), the purpose of which would be to encourage the negotiation of an agreement that cases can continue to be referred to the CJEU by our own courts after exit day. That would relate to new cases where the cause of action arose prior to exit day. This is logical because the important point is about whether the full remedies currently available to litigants, potential litigants and, importantly, our courts remain until we leave, while the law of the EU remains in place.

Of course, being able to refer such cases depends on an agreement, the very agreement that my noble friend’s amendment would make it an objective to negotiate. We will not be able to refer cases to the court in Luxembourg after exit day, except by agreement with the EU in such an agreement. But he is also right that there is a risk—although we hope very much that it will not happen—that if we end up without a withdrawal agreement, there would need to be legislation enabling this to continue to take place. So the principle of the amendments seems entirely right, and he is right to say that this was dealt with by the Constitution Committee at paragraphs 150 and 153 of its excellent report.

Perhaps I may refer to what the committee said in paragraph 153, having made the point that my noble friend has identified:

“We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of ‘retained EU case law’—and that the Government publishes, on exit day, a list of all such cases”.


The middle part of that, on what the significance is of,

“rulings on cases that have been referred … before exit day”,

is dealt with in a later amendment. But, as he has said, the requirement that the Government should publish a list of all such cases is dealt with in these amendments. He is right to say that the Solicitor-General in another place referred to the importance of knowing, at least as I read his remarks, what those cases are.

It seems that there has to be a justification, although I can see none, for depriving litigants and our courts of the ability to refer cases to the CJEU. It is important that noble Lords are clear on the fact that that does not mean sending cases to the CJEU for it to decide; it is for that court to determine questions of interpretation, as the treaty currently provides, although the interpretation given may in fact then decide the case. Our own courts would then take the interpretation provided by the European court and apply it to the case before them.

I look forward to hearing what the noble Baroness or the noble and learned Lord, depending on who will respond to the debate—forgive me, of course it is the noble Baroness the Minister—will say to my noble friend.

[Baroness Goldie (Con)]

My Lords, this may have been a short debate but it concerns a significant issue, and I am grateful to the noble Lord, Lord Bassam, and the noble and learned Lord, Lord Goldsmith, for their contributions. I am aware that a key issue of interest in this Committee is how pending cases before the European courts will be resolved, and I hope that I can respond relatively briefly to these amendments in the name of the noble Lord, Lord Bassam.

As was acknowledged in their contributions, the Government have been clear regarding their approach to cases which have been referred to the European courts before exit day and we have made good progress in achieving this outcome in our negotiations with the EU. As such, I applaud the similar concern expressed by the noble Lord that there should be legal certainty in this area. However, as I have said previously, and indeed as my ministerial colleagues have also said, the purpose of this Bill is to provide a functioning statute book on the day we leave the EU, irrespective of the result of the negotiations on any final agreement with the EU.

The Government have been clear throughout the passage of the Bill through this House and the other place that it is not intended in any way to prejudge the negotiations or to predict an agreement between the UK and the EU on their future relationship. For that reason, I would submit that the Bill is not a suitable vehicle for such amendments to take effect. Future legislation will be needed to implement the withdrawal agreement, including the treatment of cases that are pending before the European Court of Justice. That legislation will need to be informed by the precise terms of the agreement. The Government have already committed to introducing a withdrawal agreement and an implementation Bill, but let me try to clarify a couple of the specific points raised.

I think it was the noble and learned Lord, Lord Goldsmith, who in effect asked about the status of a case that has been referred to the European court before exit, but does not proceed to a judgment until after then. The intention is that a case which starts and has been referred to that court before exit would proceed to a judgment, which our courts would be bound by. That is the intention but—let me make this clear—this is pending an agreement with the EU about these issues. In relation to the request of the noble Lord, Lord Bassam, for a list my understanding is that, at the moment, cases registered at the Court of Justice of the European Union are made available online, so after our withdrawal we will have certainty as to how many pending UK cases have been referred to the court.

I apologise to the noble Lord and the noble and learned Lord if I have not specifically addressed some of their concerns. The difficulty, as was made clear in December, is that there is a clear statement of intention made in good faith by the Government, surrounding heads of agreement that have been achieved between the United Kingdom and the EU. But we need to continue with our negotiations to fine tune that, and hopefully then reduce it all to the final agreement. But I cannot pre-empt what may be in the final agreement and I hope that, in these circumstances, the noble Lord, Lord Bassam, will feel able to withdraw his amendment.

[Lord Goldsmith]

I apologise for not having properly identified the noble Baroness, Lady Goldie, as the Minister responding to this debate. I wonder whether she will allow me to just press one question. She has very helpfully identified the position in relation to pending cases that have started but for which rulings have not been given at the date of exit. These amendments include an additional category of cases, as I understand it, such as cases where the cause of action has arisen prior to exit: for example, where EU law is in place and there is an issue of EU law that a litigant wants to raise but they have not actually started the case at the moment we leave; or where the case has started but a reference has not been made at that stage, because the court does not make a reference until it comes to a particular point in the proceedings. In line with her helpful answer in relation to the category of cases that are pending in the CJEU at the date of exit, does she think the same principle ought to apply, subject to agreement, to cases where the cause of action has arisen before exit or the case has started but not got any further than that? Could she help on that point?

[Baroness Goldie]

I thank the noble and learned Lord for his point, but I am afraid my response is going to be slightly less encouraging for him. The position of the Government is that we do not agree that new cases should be initiated post exit, even when these refer to pre-exit causes of action, because it would lead to an uncertain environment. It would be impossible to predict for how long the European Court of Justice would continue to issue judgments in respect of the UK. That, in the opinion of the Government, would strike at the underlying purpose of this Bill, which is to try to achieve a snapshot—to use that phrase again—as at the date of exit.

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[Lord Hope of Craighead]

My Lords, with respect to the noble Lord, Lord Adonis, what the noble Lord, Lord Pannick said in reply is in my experience absolutely right. To a judge, the word “relevant” requires him to look at the issues that need to be decided. It is a much tighter word than “appropriate”, and is used frequently. In case law, one searches for the point that is directly relevant to the point at issue. It may be that legal terminology is best adopted because that is what judges understand. It is a different kind of word from “appropriate”, which judges do not normally use. Therefore, I suggest it is a better word to use in this context.

[Lord Goldsmith]

My Lords, given the time, it may be relevant, appropriate or even helpful to try to wind up this particular debate, although not in such a way that undermines the very real importance of the amendment.

I want to underline two aspects. The first aspect is legal certainty, which was referred to by the noble and learned Lord, Lord Neuberger, and the noble Lord, Lord Pannick. It is very important, for example, that in considering cases where retained EU law is in question, people and businesses are able to recognise that if there are decisions of the Court of Justice of the European Union that are relevant, then it is likely—though not an obligation—that the courts will take them into account. They can order their affairs on that basis, and that is a critical part of legal certainty. It seems right, therefore, that this amendment, to which I have added my name, gives direction or guidance that where such decisions are relevant to the interpretation of retained EU law they should be paid regard.

The second principle is the independence of our judiciary. It is right in this context to refer to the shocking instance of the attack on our judiciary that took place at the time of the Article 50 decision. It was shocking not just that our judiciary was referred to in such terms by a popular newspaper but that it was not immediately defended and the accusation rejected by the Government, including Ministers whose job it was to do so. In dealing with this particular amendment we have to be alive to the risk that if after exit day a judge chooses—because he or she believes it right or relevant to do so; whatever word you want to use—to make reference to a decision of the Court of Justice of the European Union, that judge is not then subjected to a barrage of criticism and the accusation, “How dare you take refuge in decisions of this hated institution, one which we have left, in making decisions on this law?” It is important that we should look at this carefully and make sure that judges are protected.

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[Lord Beecham (Lab)]

Does my noble and learned friend agree that, in all fairness, the noble and learned Lord, Lord Keen, distinctly and clearly criticised those attacking the judiciary at the time that my noble and learned friend mentioned?

[Lord Goldsmith]

I am grateful for that unexpected intervention from my own Front Bench, but I am happy to take the opportunity to say that the noble and learned Lord, Lord Keen, was one of the few to say the right thing and uphold the independence of the judiciary at the time of that attack. I am grateful to my noble friend Lord Beecham for making the point because it deserves to be made.

--- Later in debate ---

[Lord Pannick]

I am very grateful to the Minister for that encouraging response, and I am grateful to the noble Lords and noble and learned Lords who have spoken in this debate.

On a matter of detail, the noble Lord, Lord Adonis, asked about new subsection (2B) in Amendment 56, giving guidance to the judges to look to the relevance of an EU agreement. The noble Lord asked how that would work. I shall give him an example. If the judge is seeking to interpret a provision of retained EU law, relating to, say, medicinal products; if the Court of Justice after exit day pronounces on a regulation which has become part of retained EU law, and if the withdrawal agreement has said that there will be close regulatory alignment between the EU and the United Kingdom in that particular area, then the judge would be encouraged to pay close regard to what the Court of Justice had said about the meaning of the regulation. Our court would still be in control but it would pay particular regard—that is the whole point of new subsection (2B).

There is widespread agreement around the House that the wording of Clause 6(2) is unsatisfactory and that Parliament needs to give as much guidance as possible to judges in this context to protect them from being seen to be required to take policy decisions, which would undermine confidence in the rule of law. The Government and Parliament would be very unwise to reject, in particular, the concerns expressed by the noble and learned Lord, Lord Neuberger of Abbotsbury. It is much more difficult to identify precisely what should be put in place of Clause 6(2). I am encouraged by what the Minister said—that the Government are listening and considering this matter. I am sure that all noble Lords who have spoken would be happy to contribute to the discussions that will take place before Report. I hope that, on Report, the Government will bring forward amendments to Clause 6(2).

[Lord Goldsmith]

Before the noble Lord withdraws his amendment, as I suspect he is going to do, can I ask him to clarify one point? He talked a moment ago about the need to protect the judges. Would he agree that it is a question not of protecting the judges from attack, but of protecting the independence of the judiciary and the rule of law?

[Lord Pannick]

I entirely agree with the noble and learned Lord. I think I said in opening this debate that it is not that the judges cannot withstand criticism of their judgments, it is rather that we are all concerned about confidence in the rule of law. As the noble and learned Lord said, if the judges are left to take policy decisions in a very sensitive context, where a decision will have to be made as to the weight—if any—to give to Court of Justice judgments handed down after Brexit, there is no doubt that they will be exposed. They will be the subject of criticism which will undermine the rule of law unless we do our job and give very clear guidance on what Parliament thinks should be the appropriate approach.

I beg leave to withdraw the amendment.