European Union (Withdrawal) Bill — House of Lords, 2018-03-28
Topic: International Affairs
Peter Goldsmith (Labour, Centre-left): My Lords, the purpose of this amendment is to prevent Section 6 coming into force until after the expiration of any transitional arrangements agreed with the Union. Clause 6, somewhat innocently and perhaps misleadingly named "Interpretation of retained EU law", does more than simply offer canons of interpretation for retained EU law. Its apparent purpose is to bring to an end in a number of respects the role of the European court, the CJEU. Once Section 6 is in force no court or tribunal would be bound by any principles laid down or any decision made on or after exit day by the CJEU. Moreover, it would bring to an end the ability to refer matters to the European Court. As the Committee will be well aware, one of the ways in which the uniformity of Union law is preserved is through the ability of national courts to refer questions of interpretation and so forth to the European Court for decision. That means that our courts can get authoritative rulings on European law from the top European court to help our courts make their decisions. Moreover, of course, while we are members of the Union we are bound by Union law as interpreted and laid down by the European Court Of course, because certain law will be retained as EU law after exit, if the Bill goes through, the shutters cannot and should not come down completely even after exit. Subsections (3) to (7) of Clause 6 provide how the courts and tribunals are to interpret retained EU law after exit. As one would expect, even after exit day retained EU law will need to be interpreted in the light of decisions of the CJEU on those very provisions, although at that time our most senior courts—the Supreme Court in England and Wales and the High Court of Justiciary in Scotland, in its appellate role—would have the power to depart from those decisions. It is not, however, that aspect of continuing arrangements that this amendment primarily concerns. This amendment is concerned to ensure that, so long as we remain bound to follow EU law under transitional arrangements, the judicial arrangements, including the role of the CJEU, will continue to apply. That makes sense because, until the transitional arrangements have come to an end, EU law will continue to apply I have looked, as many noble Lords will have done, at the colourful draft agreement for withdrawal published recently. I say "colourful" because we can see the green parts that show what has been agreed at negotiator level and the yellow parts showing what has been agreed as policy objectives. As for the proposals for judicial procedures, none of that is green or indeed yellow; it is white at the moment so, as I understand it—the noble and learned Lord or the noble Baroness, whoever is replying, will explain—the current position is that we simply have, in this text, the negotiating position that the European Union wants to put forward. That is dealt with in Title X and Articles 82 to 92, particularly Articles 82 and 83. As I understand them—again, this could be confirmed or otherwise—the current proposal of the European Union is as follows First, the European Court will continue to have jurisdiction in any proceedings brought before it by or against the United Kingdom before the end of the transition period. So in one case its jurisdiction would remain, if that proposal were ultimately accepted Secondly, the European court would continue to have jurisdiction to give references or preliminary rulings from our courts referred to it before the end of the transition period. In any case, if the current draft of Article 85 from the European Union is accepted, the judgments and orders of the Court of Justice handed down before the end of the transition period, as well as those handed down in proceedings by or against the United Kingdom, will have, "binding force in their entirety on and in the United Kingdom" I believe, although it would be helpful to have confirmation, that the European Union intends that, if this negotiating position is ultimately accepted, rulings and preliminary references brought before the end of the transition period will also be binding.