I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society.
I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit.
Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as
“any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.
We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment.
The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.
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Before I explain why our amendments would bring certainty and clarity, I want to make a more general point about clause 6. It reflects a discussion that has just taken place, and also a discussion that took place earlier today. Everything in clause 6 pivots around exit day, so the definition of exit day is crucial. The Government have amendments pending which would pin the date to 29 March 2019. I hope Members will forgive me if I forget the time that has been specified; I am not too bothered about whether it is EU or British time, because that does not strike me as a big issue.
As I said in an intervention, it seems to me that the Government’s amendments which purport to set exit day are mere window-dressing and mere politics. As others have pointed out, perhaps more eloquently than me—particularly the right hon. and learned Member for Beaconsfield (Mr Grieve)—the amendments are barmy. They will not achieve what they set out to achieve.
The Prime Minister is very keen on a transition period: that is what the Florence speech was all about. When I and other Members were in Brussels last week, we asked senior EU officials what their understanding was of the legal basis for any transitional deal, and they said that it was article 50. That did not come as a surprise to me because I asked the Prime Minister the same question a couple of weeks ago, and she said that her understanding was that it was article 50, based on the EU’s April guidelines.
What the senior EU officials told us last week was that if a transition took place under article 50, we would stay in the customs union and the single market and would remain subject to the Court of Justice of the European Union. If there is a transitional deal, all the courts in the United Kingdom will continue to be subject to the jurisdiction of the CJEU, which means that clause 6 will not work if there is a transition period. If the Government do not agree with me about that, will they please tell us why they do not agree, what their alternative legal basis is for any transitional deal, and on what basis they say—if they do—that we will not be under the jurisdiction of the European Court of Justice during the transition period?
That said, if we ever do leave the European Union—which I hope we do not—in reality rather than in name only, or if, God forbid, we crash out without a deal, which must be a serious possibility, clause 6 will be very important indeed, so we need to get it right. That is the reason for amendments 137, 202 and 203.
At present, the Court of Justice of the European Union is the ultimate arbiter when it comes to the meaning of EU law under the EU treaties. At present, courts in the UK are bound to determine issues of EU law in accordance with the CJEU’s interpretation. When an issue is not clear, the national court has a duty to make a “preliminary reference” to the CJEU to ask for a definitive interpretation. That is how it works. It is wrong to describe the Court of Justice as having jurisdiction in the UK; it simply has jurisdiction to answer questions about EU law that are put to it by the UK courts. I fear that much of the antipathy that is directed at the Court of Justice is based on a fundamental misapprehension about what it actually does and what it is actually there for. It does not dictate our laws. As others more eloquent than me explained earlier today, the laws come from many sources. What the Court of Justice does is interpret the laws and create some consistency.
I accept that if we leave the European Union, the duty to refer issues to the CJEU will no longer apply, but I also know, because the Bill tells me so, that “retained EU law” will still have to be interpreted by our courts, north and south of the border.
Under clause 6, after exit day our courts will not be under a duty to follow the interpretation of the Court of Justice, but even though that is the case, the Court of Justice will continue giving judgments on references from other member states, and these will deal with the meaning of what law we have retained. The case law of the Court of Justice may therefore still offer useful guidance for our courts. I think the Government accept that, because they have attempted to frame some guidance on that in clause 6, but the only guidance they have given is that the UK courts are not bound by the Court of Justice after Brexit, but they may have regard to anything the court says if they consider it “appropriate to do so.” The word “appropriate” causes concern to many across this House and outwith it, because it gives the judges an extraordinarily wide discretion, but no guidance on the circumstances in which it is proper for them to look at Court of Justice decisions.
This is important because no less a figure than Lord Neuberger, outgoing President of the Supreme Court, has expressed concern that judges will need clarity about how to treat decisions of the Court of Justice after Brexit. He has said that if the Government do not express clearly what the judges should do about Court of Justice decisions after Brexit, the judges will simply have to do their best, and if they are left just to do their best, it would be unfair to blame them for making law which Parliament has failed to make.