Draft Challenges to Validity of EU Instruments (EU Exit) Regulations 2019

Paul Blomfield Excerpts

Monday 18th March 2019 General Committees

[Paul Blomfield (Sheffield Central) (Lab)]

If I may echo the Minister, it is a pleasure to speak to this statutory instrument with you in the Chair, Mr Davies. I thank the Minister for his detailed explanation of the instrument and his comprehensive response to the question asked by my hon. Friend the Member for Gedling.

Schedule 1, from which this statutory instrument flows, relates to section 6 of the EU withdrawal Act on the interpretation of retained EU law. The relationship between domestic law, EU retained law and EU law post exit will give rise to many legal complexities and this SI, though narrow in its scope, raises serious technical and constitutional questions that require clarification.

The Minister did not take the EU withdrawal Act through the Commons, but I am sure he paid close attention, and he will know that when we originally debated it over several long months there was no clarification of schedule 1 paragraph 1(2)(b), which exempted the ban on validity challenges where,

“the challenge is of a kind described, or provided for, in regulations made by a Minister of the Crown.”

This SI provides the necessary criteria, as the Minister set out, and we do not intend to divide the Committee on it.

There is a point on which I seek clarification from the Minister, and that is the decision not to provide a mechanism for the domestic courts to take into consideration future declarations of invalidity by the Court of Justice of the European Union and the potential impact on UK citizens or businesses. The justification for that, as set out by the Minister and in the explanatory memorandum, raises several questions and risks creating an ambiguous legal position. The concern was also expressed in the other place and by the House of Lords Constitution Committee. Paragraph 2.7 of the explanatory memorandum refers to the fact that

“domestic courts have never been able to find EU law invalid.”

That is true, but we are dealing with a new category of EU retained law that will require an innovative approach, as reflected in the fact that the SI gives domestic courts a time-limited power to rule on the validity of EU law.

Paragraph 2.9 of the explanatory memorandum asserts that the approach in the 2018 Act was

“to take a snapshot of EU law as it stands on exit day.”

I recognise that the Government believe that that will provide legal certainty, but I am concerned that it does not robustly tackle the complex questions that the provision raises. We believed that our post-Brexit relationship with the CJEU should be much more dynamic and we tabled amendments to that effect in our consideration of the Bill. However, we recognise that there was some acknowledgement that the influence of the CJEU could not be exorcised from EU retained law, and it seemed that the Government had some appreciation of that.

Section 6(2) of the 2018 Act permits domestic courts to take account of CJEU judgments post exit, but not be bound by them. That is a sensible approach that reflects the unique new category of law created by our departure. However, it is negated by section 6(3), which limits any questions on validity in accordance with retained pre-exit case law and pre-exit EU competencies. The Government’s justification for that in the SI relies heavily on their belief that it will affect a small number of litigants. The Minister made the point that cases are extremely rare. If the Government believe the cases are so few in number, would it not be more consistent and arguably provide more legal certainty to permit domestic courts to have regard to post-exit questions on validity? I recognise that the Minister is arguing that that creates uncertainty, but that is at odds with his argument about the rarity of the cases. We cannot predict that, and the relationship between retained EU law and other domestic legislation is likely to raise a host of questions for the courts.

The instrument risks denying courts what might be much-needed flexibility in dealing with the new relationship. Let us take one example. Paragraph 2.4 of the explanatory memorandum recognises that a declaration of invalidity by the CJEU leads to a disapplication of the legislation, which

“is as if the law in question never existed.”

Have the Government given any consideration to a legal challenge that there was no valid underlying EU law to be transposed into domestic law, therefore meaning it does not exist in EU retained law? This is not a question of parliamentary sovereignty, as per paragraph 2.9, which states that it would be

“for Parliament to decide whether and how to diverge.”

Rather, it is a case of whether that snapshot, as the Government deem it to be, was itself inaccurate. I would appreciate clarification from the Minister on that point.