European Union (Withdrawal) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, many have spoken in the context of the tripartite relationship between the Executive, Parliament and the judiciary, of the balance to be struck in this Bill between Parliament and the Executive, and, of course, of the flawed nature of this Bill. I wish to speak solely in relation to the position of the judiciary as affected by this Bill and of maintaining its independence. Noble Lords may at once think that it is quite unnecessary for me to speak about the independence of the judiciary in this context, but it has become clear, not only from what has happened in this country but also from what has happened elsewhere, that the independence of the judiciary depends to a material extent on the legislature and the Executive doing what they can to keep the judges out of political decisions and the judges, of course, doing what they can to keep themselves out of such decisions.

The present draft of Clause 6 requires the judges within the United Kingdom to make decisions that could well be, or certainly be seen to be, political in nature. It is essential that Clause 6 be amended to that effect. This is not the time to develop the arguments, for in any event, they are set out in the excellent—or perhaps I should say, to echo the words of the noble and learned Lord, Lord Goldsmith—brilliant report of the Constitution Committee. There is a solution suggested; it needs discussion, and I hope that by the time the Bill comes back to this House, there is a properly thought-through amendment to that clause.

Although it is Clause 6 that directly affects the position of the judiciary in our constitution, it is important also to appreciate the potential effects on the judiciary and its independence of the present clause on devolution—Clause 11—and of Clauses 7 to 9. Those clauses have been referred to by my noble and learned friend Lord Hope as the Cromwellian clauses. I prefer the title Henry VIII. That is not merely because of loyalty to my predecessor, my noble and learned friend Lord Judge, who has done so much under that name to describe the real problems in the extensive use of those clauses and the dilution of parliamentary sovereignty that has resulted, but also because it was Henry VIII who abolished the separate laws of Wales.

It is clear from legal developments in the past decades that recourse to the courts will be used in any attempt to seek resolution of issues that have not been subject to decision by Parliament. That is a good enough reason in itself for decisions to be taken here. There is, as is well known, a ready route to challenge legislative powers exercised by Ministers, but probably not so well appreciated, to review issues in the devolution legislation which are not contained in well-thought-through—I underline those words—and clear provisions. The Welsh devolution cases are a pointer to the problems that can occur.

I have sympathy for the Government and their highly professional legal service when they have to bring about changes to a vast volume of legislation faced with the pressure of time and the uncertainty caused by the absence of agreement with the European Union. In those circumstances, I very much hope that this House and the Government will be prepared to explore alternatives in the legislative process, which have been mentioned by many noble Lords, and the use of expert bodies, such as the Law Commission, to assist by their advice in the process of scrutiny, which is difficult, and avoid unintended consequences.

It is the position of the judiciary that I wish to emphasise. The noble Lord, Lord Kakkar, forcefully pointed out that these issues are a matter of real concern to the judiciary as they affect it. So far, the judiciary has been one of the institutions that has remained largely unaffected by the issues relating to Brexit. However, the events of November 2016 arising out of the first decision in the Article 50 case, in which I participated, demonstrated the importance of the role of the judiciary in our constitution and social order, the relative fragility of its independence and the necessity of Parliament doing, as it did then, all it can to safeguard the independence and position of the judiciary.

There is a further factor which until recently may have been overlooked: the significant contribution our legal system makes to our economic prosperity. We should not ignore the fact that the events of November 2016 were publicised worldwide and commented on. I therefore hope that Parliament will do what it can so that the judiciary’s independence and reputation are not put in issue again.