Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.

Donate to our crowdfunder

Main power in connection with other separation issues

Part of European Union (Withdrawal Agreement) Bill – in the House of Commons at 1:00 pm on 8th January 2020.

Alert me about debates like this

Photo of Bob Neill Bob Neill Conservative, Bromley and Chislehurst 1:00 pm, 8th January 2020

Thank you very much indeed, Sir Roger. It is a pleasure to see you in the Chair and to follow Joanna Cherry. I do not share her political analysis, but I do have sympathy with some of the legal points she raises, which I will address.

I will start with the interpretation of retained EU law, which raises an important issue. As the hon. and learned Lady has said, concerns have been raised by many lawyers, regardless of their political views. I speak as someone who supported the Bill’s Second Reading, who will support it on Report and on Third Reading, and who stood on a manifesto commitment to implement the Bill. The lawyer in me, however, says that it is particularly important that we get this detail right. That is why I hope I can press Ministers for a little more detail and explanation as to why they have chosen a particular course to achieve their objectives.

I accept that there will be circumstances in which it will be necessary for courts to depart from EU law once we have left the European Union. I have no problem at all with that. I am concerned, however, that the Government’s chosen formulation for clause 26 has the potential to upset the well-established hierarchy and system of binding precedent that has characterised English common law and, to a greater or lesser degree, that of the other jurisdictions of the United Kingdom. The system of binding precedent is important because we have always regarded it as a benchmark of English law that gives certainty, in that lower courts cannot depart from the decisions of higher courts. That has served us well for centuries and is not something from which we should lightly depart.

It is going to be important for the future, too. If we are to advance Britain’s position as an international legal centre and an international financial and business centre—as I hope and am confident we will—certainty of law is important. I am a little concerned, however, that, without more explanation, the Government might risk getting to a stage where—inadvertently, I have no doubt, and perhaps for the sake of speed—they may undermine that valuable asset. That would have perhaps two consequences, which I will touch on.

Judgments made over the years by the European Court of Justice have been embedded in domestic judgments of our courts, including those of the Supreme Court. It seems odd that power should be given to a lower court to, on the face of it, depart from a Supreme Court judgment interpreting the European law as it then was. On the face of it, and without more explanation, that seems to me to upset the doctrine of binding precedent and risks driving a coach and horses through a fundamental part of our system. That is not something we should undertake lightly. Will the Minister explain the rationale behind it and precisely how the Government will go about it? Why is it necessary?

People who will seek to litigate or enter into contracts during the EU withdrawal period, or immediately after—many commercial contracts will run over that period—will want to do so in the knowledge that they will have certainty as to what the law is likely to be. If the law is likely to be disapplied, that will be done either by an Act of Parliament, which is fair enough, or by a judgment of the High Court or, if appropriate, the Supreme Court, working through the usual hierarchy of precedence. It would be bizarre to allow an employment tribunal or even a High Court judge sitting at first instance to, on the face of it, have the power to disapply EU law in a way that might not be consistent with the ruling of the higher court in previous cases. I am sure that that is not the intention, but the wording as it stands, without more being said, seems to open up the risk that that could happen. I hope the Minister will help us and explain how that will be avoided, because I am sure it cannot be what the Government want.

There is a second risk, though also unintended, I am sure. As well as being embodied in judgments, previous ECJ decisions in EU law have been embedded in policy decisions, which have been made sometimes in this House by primary or secondary legislation, and sometimes through the executive actions of Ministers and other executive bodies and agencies. If one is inviting a lower court to depart from EU law on those matters—and, perhaps, to overturn some of those decisions—we run the risk, as the Law Society fairly points out, of, ironically, dragging our courts into areas of potential political controversy. I cannot believe that the Government wish to do that. Moreover, given that in recent months people in some circles have been critical of the UK’s higher courts for their judicial activism—personally speaking, I think that is unfair—it would be a little ironic and odd if we were to encourage judicial activism by the lower courts. I cannot possibly think that that is what the Government want to do. Without an explanation or refinement of the wording of the clause—I do not expect the Minister to do that now, because he will have time to do so—it seems to open up another risk. I hope he will explain the thinking behind it and how we might avoid that unintended and, I am sure we would all agree, undesirable consequence.

The European Union withdrawal agreement dealt with that subject by saying that only the Supreme Court could depart from EU case law. That makes absolute sense, in accordance with acceptance of our binding hierarchy of courts and the precedent of judgments delivered by the courts. Can the Minister be more specific as to precisely why it is that the Government have chosen to depart from that principle in this case? If the issue is one of time, that should be reflected in the urgency with which we address the negotiations and in the resources given, including to the courts, to deal properly with such matters. I am not saying that I do not want appropriate decisions in relation to EU law to be made, but I do not think we should imperil a much broader system for the sake of expediency in relation to a narrow point. I am sure the Minister knows that I approach the issue from a constructive point of view. I hope he will give us more detail and reflect on the matter.