Brexit: Preparations and Negotiations

Lord Hope of Craighead Excerpts

Monday 23rd July 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think that the noble Lord has sat down, so perhaps I can move on to something different.

To be frank, I cannot help thinking, in view of what has happened since the White Paper was published and what has been said and what is yet to come, that it has something of the Cheshire Cat about it. As Lewis Carroll reminded us in Alice’s Adventures in Wonderland, one of the cat’s characteristics is that, from time to time, its body disappears and the last thing visible is a mischievous grin. It is not the grin that worries me so much, it is the body. I find it very difficult, from my position on the fringes of what is going on, to be sure how close what we read in the White Paper is to reality—to what our position really will be when the negotiations begin, let alone what can be achieved. That makes constructive comments on the sum parts of the paper, at least at this stage, rather difficult. That being so, I wish to concentrate on a narrow but important issue that I think will not go away so long as we continue to seek a deal along the lines that the paper sets out: dispute resolution and, in particular, our relationship with the European Court of Justice after Brexit.

On 12 July, the noble Lord, Lord Callanan, repeated a Statement about the White Paper, and the noble Lord, Lord Bridges—who I am glad to see in his place—congratulated the Minister and his colleagues on grasping the need for compromise and on their honesty about the challenges we face regarding the role of the ECJ. He referred to a passage in the paper—the same passage, I think, that the noble Lord, Lord Campbell of Pittenweem, had in mind—about the common rule book. It shows that the Government do accept that the European Court will continue to have a role in the interpretation of the laws and regulations of this country. The noble Lord seemed rather reluctant to accept that, but he did on that occasion, and I think he does again today. He said in his reply that the court’s role will be to give a,

“binding interpretation of a common rule”,—[Official Report, 12/7/18; col. 1007.]

if there is dispute about it. Importantly, he went on to say that this remit will have far from the “overreaching impact” on our laws that the ECJ has at the moment. I agree with both the noble Lord, Lord Bridges, and the Minister.

Only the ECJ can determine the meaning of a rule for the purposes of EU law. A rule book cannot be common if our interpretation of it diverges from that which has to be given to it by member states in the EU. They are all bound by treaty to give effect to what the ECJ says it means. Therefore, the role of the ECJ is inescapable and is a valuable part of the system with which the aim is to remain in contact. The Minister was right to recognise that fact. However, he was also right to indicate that the effect of this on taking back control of our own laws—the great aim of the Brexit process—will be very small. It will be so small that, in this very limited area, we are surely right to agree to what is in truth unavoidable if the system contemplated is to work. I echo here the remark of my noble friend Lord Hannay, that when one thinks of the European arrest warrant—a tiny area too—one might well adopt the same approach to our advantage.

At present, the decisions of the ECJ that affect us are many and very wide ranging. They extend to citizenship, employment law, the environment, competition, freedom of movement, immigration, public access to information, intellectual property, justice and home affairs, public health, public procurement, revenue and telecommunications. Almost all of that will end when we leave the EU and take control of retained EU law. The aim of the common rule book, however, will be to harmonise the standards, rights and obligations to be applied by each side of a trading relationship. At present, very few disputes of that kind find their way to the ECJ and from there into our law reports. That may change, but let us have a sense of perspective. The Minister was right: the option to refer would only be in that narrow area where a rule is in issue to which we had agreed to adhere as part of the common rule book. I hope, therefore, that the Government will stand firm on this matter. The White Paper is surely right to say, on page 91, that consistent interpretation is needed to ensure that everyone has confidence in the rules that affect them.

I suggest, however, that the proposed routes by which a lack of agreement as to issues of that kind can be referred to the ECJ are less than satisfactory. At page 93 we are told that this must be either through an independent arbitration panel, including members from both the UK and the EU, or by mutual consent through a Joint Committee. The exact composition of these bodies is unexplained, especially how they are to be chaired and how decisions are to be taken if there is no agreement. However, leaving that aside, it is surely in the courts that disputes about the meaning of rules will be focused and argued through. At page 91 it is accepted that the courts of the UK and the EU could take account of the relevant case law of the other party, which in the case of the EU will presumably include the case law of the ECJ.

So why not give power to the Supreme Court to refer the issue to the ECJ and these other bodies if the court has not been able to resolve the issue in the usual way, through argument, because the meaning of the rule is unclear and a decision is needed from that court to achieve consistency? The reference, after all, would be accompanied by a fully reasoned judgment according to our current practice, in which the arguments for either side would be fully set out and the point that the ECJ has to decide precisely defined. It seems likely that we may be pressed to agree to a change along those lines and I hope that, if we are, we will agree to that.

However, I must add a note of warning on one point. It seems to be thought, according to the White Paper, that it is the practice of the ECJ to take account of the case law of other member states. My understanding is that that is simply not true. I have heard someone say that if it has regard to our decisions it will have to have regard to, let us say, the decisions of Latvia, Romania, Bulgaria and so on. It is not prepared to go down that route and so it does not refer to other decisions. That is the fact and so can it be assumed that it would be willing to do this in our case after Brexit? All the more reason, therefore, for thinking that our Supreme Court is best placed to make the reference by means of a fully reasoned judgment. The fact that we no longer have a right of audience in the ECJ makes this even more important because we can express our views and refer to our own case law in the judgment.

I hope that the same spirit of pragmatism that the noble Lord, Lord Bridges, congratulated and drew attention to will apply in this area too when the issue is debated.