European Union (Withdrawal) Bill — House of Lords, 2018-04-23
Topic: Law and Crime
Roger Thomas (Crossbench, Unknown): My Lords, I will make one or two observations, having raised this matter at Second Reading. I am very grateful to the Minister for his amendment, which certainly brings about clarity and certainty. But, having discussed the matter with others, I want to make sure that the certainty and consequences are clearly understood The draftsmanship is elegant, because although under subsection (2) a court may have regard to decisions made by the European Court of Justice after exit so far as they are relevant to any matter before the court, making that provision subject to subsections (3) to (6) means that a court could do so only to clarify the meaning or effect of retained EU law as at the date of exit. It therefore has the effect of confirming what I describe as the ossification of retained EU law as at the date of exit. Only the Supreme Court is permitted to depart from any retained EU case law under the test set out in subsection (5) Although certainty is therefore brought about, it is at the price of ossification, other than by appeal to the Supreme Court. Ossification is a principle alien to the common law, which, while it has always sought certainty, has also always allowed a significant degree of flexibility to enable the law to develop and adapt to changing times. The principles of common law development are thus denied in the application of retained EU law to any court other than the Supreme Court A further feature of the clause is that the Supreme Court is given no guidance as to how it may exercise its right to depart from decisions of the European Court of Justice, save by reference to the 1966 practice statement and the subsequent case law. I think it right therefore to remind the House that it is giving the Supreme Court a very considerable degree of untrammelled power, subject, of course, to the right to reverse any such decision. I am very grateful to the Minister for the assurance he has given that if, in the exercise of that power, decisions are made they will be fully defended, but it is a considerable power I will make two further observations. First, a consequence of confining the power to depart from European Court decisions to the Supreme Court may well mean a significant increase in the case load of the Supreme Court. As we know, it has much else to do. I therefore ask the Minister if he would reconsider amending subsection (5) to permit the Courts of Appeal of England and Wales and of Northern Ireland, and the Inner House in Scotland, to be given a similar power. Not only would that alleviate the burden on the Supreme Court, but the experience of many sitting in the Supreme Court has shown that it is generally greatly assisted if it has a prior judgment of the Court of Appeal or Inner House on the question before it The final observation I will make echoes what the Minister said. As was often said in Committee, the Bill seeks to provide for a functioning statute book on exit in the event that there is no agreement with the EU. It has also been said there will have to be significant amendment by at least one further Bill in the event of agreement. If, for example, it is agreed that certain fields of our law or regulation must remain aligned for the purposes of non-tariff barriers, it will be necessary to ensure that the courts can take this into account in interpreting retained EU law and therefore have regard to subsequent European Court decisions to ensure that the law or regulations remain completely aligned. It is therefore, I regret to say, a matter that, in the event of an agreement, we shall have to return to at a subsequent stage. Again, I emphasise my thanks to the Minister for the discussions he has had and the certainty and clarity he has brought about.