The House of Lords Constitution Committee has
recommended that a clause to introduce significant new
ministerial powers on how courts may depart from CJEU
interpretations of retained EU law should be removed from the
European Union (Withdrawal Agreement) Bill. The Committee finds
this measure inappropriate and is unconvinced by the Government’s
rationale for introducing such constitutionally significant
powers.
Currently section 6(1) of the European Union
(Withdrawal) Act 2018 provides that after “exit day”, UK courts
and tribunals cease to be bound by the jurisdiction of the CJEU
and that retained EU law is to be interpreted in line with any
retained EU case law—namely those interpretations of the CJEU
which were applicable on or before exit day.
The new powers under clause 26(1) of this bill will
empower ministers to require courts to depart from such
considerations and instead apply ministerial guidelines that set
the tests and considerations as to when retained EU law can be
re-interpreted. There is no indication in clause 26 or the
Explanatory Notes as to what the content of such guidelines might
be. The Committee therefore
believes:
-
It is inappropriate for courts other than the
Supreme Court and the Scottish High Court of Justiciary to have
power to depart from the interpretations of EU case
law.
-
The proposed consultation with senior members of
the judiciary on the applicable tests for departures is not an
adequate substitute for the determination of such issues in
adversarial proceedings in open court, open to interventions
and with the assistance of counsel.
-
There is no case for such broad and
constitutionally significant regulation-making powers, the
effect of which may undermine legal certainty.
In its report which scrutinises the European
Union (Withdrawal Agreement) Bill, the Committee has raised
further issues on the bill, including:
-
Devolution –The Committee
recommends that the Government, before report stage, sets out
what its process for consultation and engagement with the
devolved authorities will be in respect of the future
relationship with the EU.
-
Role for Parliament – The bill no
longer includes a clause that featured in its previous
iteration which provided for parliamentary oversight of the
negotiations for a future relationship between the UK and the
EU. The bill only provides for Parliament to be notified in the
event that certain dispute mechanisms under the Withdrawal
Agreement are invoked, which is only limited
involvement.
-
-
Delegated powers – The bill
includes significant delegated powers, including Henry VIII
powers. The Delegated Powers and Regulatory Reform Committee
has recommended that a sifting process, similar to that in the
European Union (Withdrawal Act) 2018, be instituted to
scrutinise them. The Constitution Committee agrees that a
sifting mechanism is necessary.
Baroness Taylor, Chair of the Committee,
said:
“The Government should reconsider the implications of
clause 26 and the potential for significant legal uncertainty if
lower courts are to be given the power to depart from previous
CJEU caselaw and previous domestic interpretations of retained EU
law. The Government should also provide for a sifting process for
the scrutiny of instruments made under the bill, as recommended
by the Delegated Powers and Regulatory Reform
Committee.”
Read the full report on the
Committee’s webpage.
