Challenges to Validity of EU Instruments (EU Exit) Regulations 2019 — House of Lords, 2019-03-14
Topic: Mixed Topics
Martin Callanan (Conservative, Centre-right): My Lords, I am grateful for the opportunity to be here today to discuss the regulations presented before you. These regulations are part of the Government’s wider programme of secondary legislation before exit day to ensure that the UK’s legal system continues to function effectively when we leave the European Union The principal aim of these regulations is to ensure the effective continued delivery of justice as we leave the EU. It is clear that in separating our legal systems we must absolutely make sure that those who have sought justice through our domestic courts are not adversely affected by our exit from the EU. These regulations will guarantee that validity challenges originating in our domestic courts before exit will continue to be heard and that claimants can be assured that domestic courts will be able to hear them, independently of the Court of Justice of the European Union. These regulations would take effect when EU law ceases to apply to the United Kingdom. For example, if an implementation period is agreed, they would take effect at the end of the implementation period I will take a moment to remind noble Lords of the legal mechanics of validity challenges as they currently stand, before going into the details of what these regulations will change once we leave the EU. The right to challenge whether or not a law was made "validly" by the EU is currently set out in the Treaty on the Functioning of the European Union, referred to as the TFEU. The grounds are set out in Article 263 and they are: lack of competence; infringement of an essential procedural requirement; infringement of the treaties or of any rule of law relating to their application; or misuse of powers. In effect, such challenges are the EU equivalent of judicial review. It is important for noble Lords to be aware that rulings in validity challenges are always given by the CJEU. National domestic courts, both in the UK and other EU member states, do not have the legal jurisdiction to make judgments on these cases There are two ways in which cases make their way to the CJEU for judgment. In the first instance, claimants may bring their cases directly before the CJEU. Let me be clear: these regulations do nothing to amend or remove that right for UK nationals who may wish to pursue that route of challenge after our exit. Any UK national who complies with the relevant requirements in the TFEU and who wishes to take a case to the CJEU to challenge a relevant EU law on these grounds will continue to be able to do so after exit. However, post-exit CJEU judgments on validity will not of course apply to the UK I would like to highlight that the majority of challenges brought in this manner directly to the CJEU by UK-based claimants are against individual decisions that affect one business or individual, and are not generally against legislation of general effect. My officials have identified alternative domestic mechanisms for challenge post exit in the majority of these cases The other way in which validity challenges come before the CJEU is via the national domestic courts. During proceedings, questions of validity may arise, and where and when they do—unless judges consider that the question is so obvious that no reasonable doubt is left—national courts must pass these questions on to the CJEU for judgment. This is done via the preliminary reference mechanism. After judges have sent off for a ruling, the domestic case is put on hold until the CJEU makes its judgment. In legal parlance, the case is stayed or "sisted"—not "sistered" but "sisted".