European Union (Withdrawal Agreement) Bill — House of Lords, 2020-01-15
Topic: Law and Crime
Simon Denis Brown (Crossbench, Unknown): My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, "That is now established as the law and therefore we would like to invoke it." In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law Professor Ekins suggests that that "would introduce unnecessary legal doubt and improperly empower the Court to make new law." I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.