European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

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

[Lord Mackay of Clashfern]

I think that is meant to be an intervention, because I have not quite finished. The situation is that the British courts, the Supreme Court in particular, have discretion to look at any judgment that they wish, and to raise any question they wish in these judgments. There is nothing in the present Bill that impedes that, except in respect of questions of European law, because the courts themselves, and the members of the Supreme Court, have been anxious that if they paid too much attention to the European court after Brexit, they might be accused of being involved in politics. They have sought a direction from Parliament on this matter, and that has been attempted, and I hope it is successful.

I personally do not share the animosity that exists in some quarters towards the European Court of Justice. It is over 30 years now since I often appeared before them, and I have nothing but praise for the way in which they do things. They do things very differently to us. There are far fewer oral hearings—at least, there were when I did it, which was a long time ago. There is much less oral pleading than there is in our courts. Actually, our courts have moved slightly in that direction in recent years, since I was last involved with them—and in some cases quite far in that direction.

The respect I have for the European Court is of the highest order, but I do think there is a difficulty because, after Brexit, no judges or advocates-general of the British Bar will be members of the court or advocates-general in the court. That is an important factor to be taken into account in the arrangements. I am not part of the negotiations—I have nothing to do with them—but I do believe that that point has to be taken into account. There is a usual rule that the people administering justice are the people who are in accordance with the arrangements between states. International courts, for example, may not have representatives from all the states that appear before them, but there is a question to be considered in that connection, because the Court of Justice referred to in the amendment will not be the Court of Justice as it is now.

[Lord Hope of Craighead (CB)]

My Lords, I would like to intervene, following what the noble and learned Lord, Lord Mackay, has said, and referring to the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock. One of the problems I have faced since looking at this Bill, is trying to find hard examples of situations in which the Supreme Court would wish to refer a matter to the European Court of Justice.

There is a very good example reported in Monday’s Times of a case called SM (Algeria) (Appellant) v Entry Clearance Officer. I will take a moment to explain what the case is about, because it is a good example of citizens’ rights. SM was a little girl, who was placed into the legal guardianship of EU citizens, who happened to be in Algeria. The question concerned her position in coming to the United Kingdom as a member of that family under the Immigration (European Economic Area Regulations) 2006. Merely referring to those regulations reminds us that they would become, as I understand the position, retained EU law under Clause 2 of the Bill.

The problem arose because the court saw that the regulation had been transposing wording from a directive, which is the normal way in which these things work, but the transposition was inaccurate. This is a situation I have encountered before—it happens from time to time. The question is how to deal with the inaccuracy. The inaccuracy was that while our regulation talked about “family member”—somebody who was put into the legal guardianship of a couple, would normally be regarded as a member of the family—the directive was talking about “direct descendants”, and she was not a direct descendant, because she was not actually related, in that sense, to the people who had become her guardians. In order to resolve that problem, the court found it necessary to refer the matter to the European Court of Justice—which it did on Monday. That was under the existing position.

In resolving the point raised by the noble Lord, Lord Foulkes, it may help to ask how that matter would be handled after exit day. I may be wrong, but my understanding is that it would be for the Supreme Court to resolve the issue itself. The directive would come into EU retained law under Clause 3, so we would have both pieces of legislation to look at. I think that the court, having regard particularly to the way in which we had translated the directive, would give great weight to our own language and regard this little girl as part of the family and therefore entitled to take the benefit of the regulation.

In explaining the situation, I hope I have not made it too complicated, but it is a good example of citizens’ rights, accorded by our own regulations, giving effect to EU law. There must be very many in the corpus of regulations which forms part of EU law. It comes back to the point made by the noble and learned Lord, Lord Mackay of Clashfern. The Supreme Court looks very carefully at the interests of children and would accord every weight to the normal rules about the priority given to the interests of the child in construing the regulation in a sense that fits with our own language. I should have thought that, after exit day, the question of referring the matter to the European Court of Justice simply would not arise because the court would be capable of resolving the issue itself without being bound by the problem of having to refer something which was not that clear. If I may use the English expression, it was not crystal clear; therefore they were bound to refer. Under the situation after exit day, any superior court will be fully able to resolve the problems of interpretation that arise. Will the Minister confirm that, in this situation, there would be no need for a reference because our courts would be able to deal with it perfectly properly, looking at the language of our own regulations, despite the problem that might have arisen in translating them from the directive into English?

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. The point made by the noble Lord, Lord Foulkes, in moving this amendment— I referred to it myself—was that, as part of the agreement that was struck between the United Kingdom and the European institutions in December, provision was made to,

“establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it”.

So it is not a case of questioning the ability of the Supreme Court. We have entered into an agreement which says that there must be an opportunity or a mechanism to refer to the Court of Justice of the European Union. How does the noble and learned Lord see the mechanism for giving effect to what the United Kingdom Government have agreed?

[Lord Hope of Craighead]

I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well.

[Lord Forsyth of Drumlean]

Before the noble and learned Lord sits down, in summary, was he saying that the amendment of the noble Lord, Lord Foulkes, is completely unnecessary?

[Lord Hope of Craighead]

With great respect, I would not put it in that way. It has given me an opportunity to bring forward an example which I am hoping the Minister will be able to comment on. The noble Lord has raised an important point. We all care about citizens’ rights. I hope I have drawn attention to the context in which one looks at the amendment. It is a well-crafted amendment to which the Minister may have an answer along the lines I have suggested.

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[Lord Hope of Craighead]

My Lords, I hesitate to follow the very careful analysis of the noble and learned Lord, Lord Neuberger, but perhaps I can add a few words. We are all trying to find the best way of expressing in clear and simple language, in statutory form, the guidance that the courts and tribunals will need about the interpretation of retained EU law. In particular, Clause 3 is about direct EU legislation which we will be receiving in the language of the directives and regulations to which this clause refers.

The position is fairly clear about judgments or decisions of the CJEU before exit day. That is retained EU case law which is referred to in Clause 6(3) and we are not in any difficulty on that; rather, it is what to do about the future. Had it not been for the concerns expressed by the noble and learned Baroness, Lady Hale, and the noble and learned Lord, Lord Neuberger, about the risk of being criticised for being drawn into areas of policy, I would have been content to see Clause 6(2) deleted and to rely simply on the normal, traditional way in which comparative law is applied by courts up and down the country. I have been doing this ever since I started sitting as a judge. Of course, there are examples outside the particular area we are dealing with here of conventions to which we are a party and which need to be interpreted. One looks at other jurisdictions to see how the language of a convention is interpreted and applied. This is a normal part of our jurisprudence and it would have been enough. However, I recognise the force of the points made in their evidence to the Constitution Committee and today by the noble and learned Lord, Lord Neuberger, and I think that we have to do something to give the guidance for which they are looking.

One should also bear in mind that it will be some time before the Supreme Court handles cases of this kind. We are talking about tribunals as well as courts at every level. I am sure that when the Supreme Court gets hold of the thing, it will be astute enough to give the kind of guidance that one normally gets from the higher courts, but we have to look at the beginning of the process.

On the table at the moment we have Clause 6(2) as it stands and Amendment 56 from the noble Lord, Lord Pannick. I hope that the noble Lord will forgive me when I say that I think his amendment is like the curate’s egg. There are bits of it which I rather like and bits which I would prefer to drop, and the same goes for Clause 6(2). I suggest an amalgamation of the best bits of the amendment in the name of the noble Lord, Lord Pannick, and the best bits of Clause 6(2).

[Viscount Hailsham (Con)]

Cherry-picking.

[Lord Hope of Craighead]

Not at all. It is curing the curate’s egg and producing an acceptable piece of guidance which has the best bits of both, which is what we need to look for. I am not cherry-picking; I am analysing.

[Viscount Hailsham]

Having your cake and eating it.

[Lord Hope of Craighead]

No, this is analysis. Let me explain what I would like to do.

I quite like the words of Clause 6(2) as it stands:

“A court or tribunal need not have regard to”,


a judgment or decision given by the European Court on or after the exit day because that fits very well with the way we are looking at the position before exit day. It is certainly true that it is a negative way of putting it, but I regard it as a helpful transition to the new situation. However, I do not like the remainder of Clause 6(2) for the very reasons that the noble Lord, Lord Pannick, explained. That is where I would like to bring in the passages from the latter part of his formula, which are that a court or tribunal may have regard to such judgments or decisions where it considers them relevant for the proper interpretation of retained EU law.

I would take out “appropriate” from Clause 6(2), for reasons that have been referred to already, and would leave out the early part of proposed new subsection (2A) in Amendment 56 where “must” is used. I would prefer “may” to “must”, leaving it to the court to make its own decision regarding whether the matter is relevant.

[Lord Foulkes of Cumnock]

Would Amendment 55 tabled in my name and that of my noble friend Lord Adonis not deal with the noble and learned Lord’s points?

[Lord Hope of Craighead]

I am very grateful to the noble Lord and I apologise for not having paid due regard to that formula because the wording is exactly what I am looking for, but I am trying to fit it into the opening words of Clause 6(2). However, it is certainly right; I respectfully suggest that “may” is the right word to use. It is better to add in the bit about,

“where it considers it relevant”,

which is what comes from the noble Lord, Lord Pannick. So one is putting together bits and pieces of thought from various attempts to produce a formula.

Perhaps I may read out again for Hansard’s benefit how I suggest the provision might run: “A court or tribunal need not have regard to a judgment or decision given by the European Court on or after exit day, but it may have regard to it where it considers this relevant for the proper interpretation of retained EU law”. If “may” is used—although the noble Lord, Lord Pannick, will correct me—proposed new subsection (2C) in Amendment 56 will no longer be relevant. I say nothing about subsection (2B) which may have force and value if the court requires guidance as to what to do with the agreement between the United Kingdom and the EU.

I hope that that contribution will give the Minister something else to think about. I think that we all hope that on Report he may be able to come back with a formula which we can all endorse.

[Lord Judge (CB)]

My Lords, perhaps I may add a few words, simply because of the devoted affection in the Bill for the word “appropriate”. It is larded through the document. Its inappropriateness in this particular context needs to be underlined—I shall come back to it at a later stage under different clauses. It is terribly simple: if something is relevant to a court’s decision, it is likely to be appropriate that the court should look at it. If something is irrelevant to the court’s decision, it cannot possibly be appropriate for the court to look at it. So the term “appropriate” should go.

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[Lord Faulks (Con)]

My Lords, I rather agree that “appropriate” is not particularly desirable. I wonder whether putting “helpful” in Clause 6(2) would more accurately reflect the way that courts generally consider law from other jurisdictions in developing the law—one always invites courts if they find a particular decision to be helpful—whereas I understand that “appropriate” is considered perhaps to have too much of a political charge. However, I do not wholly understand why the noble Lord, Lord Pannick, finds the initial words of Clause 6(2) rather offensive, where it says:

“A court or tribunal need not have regard”.


All that is saying is that they are not obliged to have regard—I do not think it says any more. I personally read no particular charge in it, and I think that the noble and learned Lord, Lord Hope, would agree.

There is something of an irony about these amendments, in that the only way to have real certainty would be to tell the court either to disregard it or to follow it. In a sense, we are dealing with an imperfect situation. We are trying, as the noble and learned Lord, Lord Neuberger, said, to craft something which helps judges by reducing any political element in their decision-making but which—I am sorry to use a political expression—allows our courts to take back control. In order to take back control, I am happy that they should have a great deal of freedom to do so without in any sense involving them in a political decision.

Amendment 56 from the noble Lord, Lord Pannick, and others is of course much longer than the original wording, with three subsections as opposed to one. Respectfully, I say that using words such as “relevant” is only quite helpful, because in any event a court will ignore matters that are irrelevant. I feel similarly about the word “significance”: a court will itself have to decide significance. That of course may offend the political element but, if something is insignificant, the court will disregard it in any event. Although I understand what lies behind this amendment, I am not sure that it really does the trick.

It is not just out of nominative loyalty that I turn to the amendment of the noble Lord, Lord Foulkes, but because he may be on to something. I agree with the use of “may”, which was endorsed by the noble and learned Lord, Lord Hope. I am not quite so sure about “persuasive”, but I will listen to what the noble and learned Lord says. However, I like the succinct nature of the amendment and it seems to me to allow our courts the freedom that we have, as it were, granted them by the decision that the country has made in the referendum, but nevertheless not to compromise them.

[Lord Hope of Craighead]

Does the noble Lord have any reaction to the point made by the noble Lord, Lord Pannick, about the reference to,

“another EU entity or the EU”,

in Clause 6(2) as it stands? Section 3(1) of the European Communities Act 1972 does not mention these and refers only to the European Court of Justice, so it may be that there is no need to refer to these entities and we can confine it to the European Court of Justice.

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[Lord Beith (LD)]

My Lords, if the noble Lord, Lord Adonis, is wondering why the word “appropriate” does not fit into the context of trying to limit judicial discretion, he should look at how many times it is used in this and other Bills to give Ministers the opportunity to decide one way or the other, in what are quite clearly different kinds of decisions from those you would expect judges to make.

[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.