European Union (Withdrawal) Bill — House of Lords, 2018-04-23
Topic: Law and Crime
Peter Goldsmith (Labour, Centre-left): My Lords, the noble Lord, Lord Spicer, has made a very interesting observation, but it seems to go wider than the amendments which the House is being asked to approve, so I shall not say anything about the issues that he has raised. He referred to the "remain tactics". I am not aware that there are any remain tactics in relation to this amendment. On the basis that we are leaving, all the amendment is about is making sure that it works properly. That has certainly been the guiding principle as far as I am concerned On the formulation of the amendment, I do not want to use the word "helpful", because that is the one word that I do not like—the noble Lord, Lord Faulks, knows that. The problem with "helpful" is that it is a little subjective. A noble Lord, who is not in his place so I shall not identify him, told me in the previous debate that he was going to say something. I said, "Okay. Is it going to be helpful?" He said, "You might think so". Let me tell you that it was not helpful at all. He might have thought it was, which is the problem with "helpful". In any event, I do not imagine that the courts will have regard to something that they do not think is helpful for the purpose of the issue before them, so I am happy with "relevant". The important point is that it will not be perceived as a political decision being made by a court in wanting to follow a decision from the European court. That is the point that we were making in earlier stages on this part of the Bill, and I thank the Minister and his department for dealing with it That leads to the fourth question asked by the noble Lord, Lord Pannick, which was about the protection, safeguarding and upholding of the independence of the judiciary. We raised that on the previous occasion; it is hugely important. I join the noble Lord in congratulating the noble and learned Lord, Lord Keen, on coming out and supporting the judiciary at a time when others in government sadly were not. The assurance on that sought by the noble Lord, Lord Pannick, is important, and I am grateful that the noble and learned Lord has succeeded in answering it already—it was slightly out of turn, but it was good. I shall ask him to go a little further, because the obligation to uphold the independence of the judiciary does not rest just on the Lord Chancellor. I believe that the Constitutional Reform Act which set that out imposes that obligation on the whole of the Government, and it is important that it should. We cannot have a situation in which one Minister, in perhaps one of the more political jobs, is able to say unhappy and unhelpful things about the judiciary and think it okay because the Lord Chancellor will stand up and say, "We shouldn’t really be doing that; we should be protecting them". It is important to recognise that it is the whole Government. I would single out as well the Attorney-General as one who should uphold the independence of the judiciary. When I was in that office, I certainly regarded it as part of my job, although the Lord Chancellor was in that primary position. I would be grateful if the Minister when he replies for the second time could touch on that point and see what assurance he can give The noble and learned Lord, Lord Thomas, raised an important point about ossification, as he put it, which is the one worry I have. As this structure works, so far as the Government are concerned, I think that the effect is that, in the areas to which the subsection would apply, the lower courts will be bound to follow decisions within that scope and it is only the Supreme Court that will be able to depart from them. That leads to the risk that the law will ossify and that cases will have to go to the Supreme Court which really do not need to because they are not that important—although it is important to clarify the law. The noble and learned Lord’s suggestion that the Government should look at the possibility of widening this so that the courts of appeal in different parts of the United Kingdom would be able to depart from what would otherwise be binding law is a good one I think that this suggestion would also be welcomed by some others—although I have not specifically raised this with them—who are worried about this provision. They are aware that there are rights—for example, in the field of workers’ rights—where there is some movement in EU law and are concerned that, as it stands, the retained EU law that we will have will lag behind what happens in other jurisdictions, which we all hope will still be partners, although not partners in the same Union. They are concerned that if this has to go to the Supreme Court it may create an unhappy difference between them. There may be circumstances where we all know that a particular piece of law is right for consideration by the top court, but it takes time to get there and it may not always get there I was going to ask the Minister whether he could give any assurances about how the Government would assist, at least where they are the other party, in getting cases to the Supreme Court where there is good reason to think that a relevant decision will be departed from. But it seems to me that opening this up to the courts of appeal would actually be a neater and more traditional way of doing that. I look forward to hearing what the Minister has to say about that. I should have mentioned at the outset that my name stands on the original amendments as well.