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

Debate between Richard Bacon and Lord Coaker

Monday 18th March 2019 General Committees

[Vernon Coaker]

I think I agree with the hon. Gentleman regarding the questions that he has just asked.

I will say this again, and I say it in every SI Committee that I am on: there are numerous SIs that pass into law that have huge implications and people come to our surgeries and say, “When did this happen?” It usually turns out that it was under some SI, rather than a piece of legislation discussed in the main Chamber.

I am not a lawyer, but I will pick up on one or two things that the hon. Member for South Norfolk asked about. The Minister may say, “I have already answered this”, but for the benefit of those who might read these proceedings and non-lawyers, it would be helpful for us to understand better.

I take the point that the Minister made, when he very helpfully read out the court case numbers, which I failed to write down; I did write down the topics. But this is the point: those cases will be dealt with, because they have already begun. I understand that, because these cases were already entered into by the courts beforehand, so there will be an opportunity for our courts to make a judgment on them after exit day—should that happen.

I have no idea what challenges there are around therapeutic bandages or artificial body parts or anti-dumping duties on footwear from China, but I would hesitate to say that these issues are irrelevant or of no consequence, partly because in numerous SI Committees seemingly impenetrable things happen and impenetrable regulations are passed, and then sooner or later somebody comes to one of our surgeries and says, “You’ll never guess what: I have a footwear business and I do a lot of trade with China, and something has happened so that it’s been declared invalid and I can’t now do it.” I have no idea. I am not saying it is wrong or right; I just do not know.

However, I have a couple of questions and it would be helpful if the Minister could answer them. I ask the Minister’s pardon if this is obvious, but it is not obvious to me: is this a no-deal SI, or is it just an SI that is passed whatever the consequence or outcome, whether we leave with a deal or no deal? Is this in lieu of a no-deal Brexit?

Normally, under our constitution, the courts can interpret the law, but as I understand it this measure will allow the courts to strike a law down. So what part of our constitution is the Minister saying allows us to strike down a law? Can he more properly explain the operation of retained European law after exit? I thought it was just, “This is the law, these are the laws we don’t want, these are the laws we do want, so they become part of our law—full stop.” Now, if I am not a lawyer, somebody needs to explain what “retained” means, because what I have just said is what I would have assumed it meant.

[Mr Bacon]

That is my understanding as well—that retained EU law simply becomes part of domestic law. My questions to the Minister were around the case of something that—in these terms and for these purposes now, after exit day—would no longer be termed in retained EU law but simply for these purposes domestic law, and whether, as this purports to suggest, it would oust the ability of an applicant to get a court to entertain whether this was in breach, or whether the powers that the Minister was using, or purporting to use, under that—for these purposes—domestic law were wrong and invalid, and the Minister was acting inappropriately.

[Vernon Coaker]

I agree with that. It is very well put and is a question for the Minister to answer, because it goes to the heart of what we are asking.

My final point in this brief contribution is important. What happens if the CJEU—I need to be careful here or I will confuse myself—finds a pre-exit provision of EU law to be invalid? It will cease to be EU law, but will it continue here? The CJEU will have found an existing piece of EU law, which, presumably, we have retained, invalid, so it will not operate in the rest of Europe, but, because it is retained, we will not have the opportunity—or will we?—to strike it down. Or will it simply continue here, even though it has been struck down in the rest of the EU, if the Minister understands me?