European Union (Withdrawal) Bill

Lord Neuberger of Abbotsbury Excerpts

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

[Lord Neuberger of Abbotsbury (CB)]

My Lords, Clause 6 is concerned with the issue of how the large body of retained EU law is to be interpreted by judges. It is an important issue because it is a fundamental principle that the law should be clear and consistent, but also because the topic could lead to ill-informed political and media attacks on the judges, to which the noble Lord, Lord Pannick, has referred, which would undermine the rule of law at home, the reputation of English law abroad and the consequential attraction of London as a global dispute resolution centre. Your Lordships will no doubt recall one such Brexit-related attack on the judiciary that received worldwide publicity. Clause 6 should be worded with a view to clarifying the law and minimising the risk of such attacks. Quite apart from that, I suggest that we need to think through the implications for the UK legal system and its attraction to others when it comes to developing our own system of retained EU law. I cannot pretend that this issue is easy to resolve but it is an appropriate opportunity to explain the context from a judicial perspective.

At the moment, at any rate, the Government envisage that post-Brexit the UK courts will, at least in general, no longer be subject to the jurisdiction of the ECJ and so will be free to interpret EU law as they see fit. This gives rise to two closely related problems. The first is: what principles of interpretation are to be applied to that retained EU law? Secondly, what use can be made of ECJ case law when carrying out that interpretation exercise?

On the first problem, unlike normal UK legislation, which is generally tightly drawn, EU legislation is relatively loosely drafted, leaving the judges to resolve ambiguities and fill gaps. Some EU legislation is of course drafted on the basis that it will be interpreted to give effect to fundamental EU aims, such as ever closer union and the strengthening of the internal market, which may well be no longer relevant to the UK after Brexit. In providing that general principles of interpretation set out in pre-Brexit ECJ decisions will be applied by UK judges after Brexit, Clause 6(3) in its present form none the less has the effect of maintaining all those interpretive principles, although by virtue of Clause 6(5) it would be open to the Supreme Court to depart from such decisions.

The second, related problem is the use of ECJ case law. In her speech last week, the Prime Minister said that,

“where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts”,

and added that,

“if, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently”.

That sounds fine but things are not quite so straightforward. The Bill sensibly provides that the UK courts must follow the pre-Brexit decisions of the ECJ although, as I have said, Clause 6(4) states that the Supreme Court can depart from those decisions in the same circumstances as it can depart from its own decisions. By contrast, where there is a post-Brexit ECJ decision, as the noble Lord, Lord Pannick, has explained, Clause 6(2) provides that a court,

“need not have regard to”,

such a decision,

“but may do so if it considers it appropriate”.

That gives precious little guidance to a judge—indeed, as I will mention later, possibly unhelpful guidance from the point of view of the judiciary’s reputation—as to how to approach post-Brexit ECJ decisions.

It has been suggested that a judge could be assisted by the approach that courts have taken when looking for guidance from decisions of courts in other jurisdictions. However, courts in this country normally do this when looking for general principles or when considering the scope of human rights conventions. That is not really a sound analogy because Clause 6(2) would normally apply to a case where a judge was looking at an ECJ decision on the interpretation of specific legislation. It has also been suggested that a judge could get help from cases that have stressed the desirability of UK courts taking account of decisions of overseas courts so as to reach a uniform interpretation, but that does not provide a real analogy either because EU law is unlike those conventions: it is a law of a union from which the UK will have departed because it does not want to have such uniformity, although accepting that it may be desirable in some cases.

As the noble Lord, Lord Pannick, has said, Clause 6(2) in its present form appears to indicate that there is a presumption against following decisions of the ECJ but that judges can follow such judgments in this country if they think it appropriate. That would suggest, as again he says, that judges would be expected to make decisions that were essentially political—in particular, whether to align the UK with an ECJ interpretation against the statutory presumption for policy-type reasons, or to depart from the ECJ interpretation.

Given that pre-Brexit decisions of the ECJ are, sensibly, to be determinative on questions of interpretation, both consistency of approach and the experience of the ECJ as interpreters of EU law support the notion that post-Brexit ECJ decisions should be given the same effect, at least where the retained legislation has not been changed. However, if this is not to be the policy, rather than leaving any new policy to be worked out by the courts, which is the effect of Clause 6(2), there is obvious force in the notion that Parliament should clearly state what the new policy is. Similarly, Clause 6(4) is questionable in providing that the Supreme Court should decide whether to adhere to pre-Brexit ECJ decisions or whether new principles of interpretation should apply, because principles to sustain ever closer union or single market freedoms are no longer relevant interpretative considerations in the UK.

There are various possible solutions that need careful consideration, given that this issue is so important, and I shall present some examples. First, the interpretative approach should follow a policy decision set out either in the amendments to be made to EU legislation under powers granted in the Bill or in the final agreement reached between the UK and the EU, and given formal parliamentary approval. In relation to issues not covered by such arrangements, it could be provided that retained EU law was to be interpreted without any departure from existing principles of interpretation. If that were not an acceptable solution, the courts could be given more specific assistance as to how to interpret legislation, in particular whether or not to continue alignment.

Secondly, as some amendments before your Lordships’ House today indicate, including those that were moved just now, post-Brexit decisions of the ECJ could be regarded as persuasive or it could be provided that UK courts must have regard to them if relevant, and that in determining relevance the court should have regard to any relevant agreement between the EU and the UK. Such formulations would probably be better than the present Clause 6(2) but they do not address all the perceived problems.

Thirdly, Clause 6(2) could be omitted altogether. At the moment, it seems to me that, with respect, the present clause is worse than nothing from the judicial perspective. First, it creates the presumption to which the noble Lord, Lord Pannick, has referred, and secondly it uses the word “appropriate”, which suggests a policy role for the judges. That would leave them more exposed in both what they do and what they may be perceived to be doing.

Fourthly, more specific interpretative guidance could be given, bearing in mind the particular circumstances of Brexit and the particular way in which EU legislation is crafted, so that decisions on differing political issues are not left to the judges. The argument that telling judges how to interpret the law could be a precedent for ordinary parliamentary legislation can arguably at least be met by the point that this is a unique circumstance. It would also have the advantage of providing clarity for the UK’s relationship, including its trading relationship, with the other states of Europe and elsewhere.

I hope these issues and the choices they reflect will be subject to proper scrutiny and discussion. The right solution will not only protect the independence of the judiciary but will demonstrate that decisions of a political nature should not be left to judges, and it will help to achieve the legal clarity that is so important to the rule of law and to the future of this country’s trading and other relationships with the EU and other states.

As I hope I have indicated, I accept that there are no perfect answers. That is unsurprising. The incorporation of pre-Brexit—but only pre-Brexit—EU law into UK law requires a sort of multidimensional Procrustean solution. In so far as the Bill requires the judges to perform the role of Procrustes, Parliament should do all that it can to ensure that the judges do not suffer the fate of Procrustes.

[Lord Adonis]

The noble and learned Lord has made a number of strong statements to the Committee about the impact, as he regards it, of Clause 6(2) on judicial independence and the reputation of the judiciary. In particular he objects, as did the noble Lord, Lord Pannick, to giving the courts the discretion to reach a judgment on whether it is appropriate to have regard to the European court. Proposed subsection (2B) in Amendment 56 in the name of the noble Lord, Lord Pannick, states:

“In determining the significance of any judgment … the court or tribunal must have regard to the terms of any agreement between the United Kingdom and the EU which it considers relevant”.


To a layman, this clearly involves an exercise of judicial discretion. So why is the judicial discretion in subsection (2B) set out in Amendment 56 potentially any less damaging and likely to be conducive to controversy than the existing Clause 6(2)?

[Lord Neuberger of Abbotsbury]

I suspect that the noble Lord, Lord Pannick, whose amendment it is, is better placed to answer. My answer would be twofold. First, it specifically tells the judge what to have regard to; it does not leave it completely open. Secondly, it uses a rather more familiar expression, “relevant”. A judge will be able to say, “When construing this, I have looked at the document”—namely, the agreement referred to in subsection (2B)—“to which I am required to have regard. In my view, it tells me to do this or that”. It is specific guidance, albeit indirect specific guidance, through the agreement referred to in subsection (2B), whereas the term “appropriate” leaves it completely open for the judge to decide whether it is appropriate, if I may use that word, to consider matters that he or she is not specifically told to take into account. The judge has to make the decision, “Do I think about x; do I take that into account?” Here, the judge knows what he or she has to take into account because it is spelled out; namely, the agreement.