It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.
It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:
“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.
As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.
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Now we come to clause 6 and, in particular, clause 6(3). My hon. Friend the Minister said he wanted to create a snapshot—I think I am quoting him exactly—on the basis of which, under clause 6(3)(a), the courts would proceed
“in accordance with any retained case law and any retained general principles of EU law”.
Together with clause 5(2), that means that the courts as a whole are being adjured by an Act of Parliament to observe the supremacy of the ECJ in respect of retained law, including where it requires the quashing of an Act of Parliament, and there is no hesitation in clause 6(3)(a) about the courts’ scope of discretion in that respect.
That seems a perfectly clear position. It is not one that I would wish to sponsor, as it defeats a large part of the very reason for Brexit—for example, almost the entirety of our benefits system has been warped by interpretations of the ECJ that go way beyond the treaties and create constraints on the award of benefits that no British Government would wish to see—but nevertheless it is a clear position. My only purpose this evening is to ensure that we do not create a frightful legal muddle. I would even settle for clause 6(3)(a) as the principle of the thing, if it were clear and it applied to all UK courts.
The problem, however, is that clause 6(4)(a) makes it perfectly clear that
“the Supreme Court is not bound by any retained EU case law”.
My hon. Friend the Minister said that this was fine, because after the snapshot the Supreme Court could make adjustments and the law could move on, but let us follow that process a bit: a lower court—or perhaps a sequence of lower courts up to but not including the Supreme Court—has before it a case to which it must apply the principles in clause 6(3)(a) and in which therefore it must judge that the possibly very expansive and teleological judgments of the ECJ, going way beyond the plain words of any text of any treaty, directive or regulation, apply in respect of the retained law. The same case now reaches the Supreme Court, which is given no guidance on which principles to apply, but is simply told that it is not bound by any retained EU case law.
Let us suppose that in this instance, for some very good reason, such as the principle of equity, natural justice or some such thing, the Supreme Court judges in the opposite direction from that of the lower courts—it has now created a precedent. The next case of a similar variety appears in a lower court, which is adjured by the statute, notwithstanding the Supreme Court’s decision, to follow clause 6(3)(a) and to apply the rulings of the ECJ, however expansive and contrary to the plain text
of the treaties they might have been, and notwithstanding whatever the Supreme Court has said. Or is it? Should the lower court instead apply the principle applied by the Supreme Court when, in relying on clause 6(4)(a), it departed from retained case law?