I will not be drawn into a discussion about that today. I can see why the right hon. Gentleman might want to take attention away from the matter in hand, but we are not here today to debate Scottish independence. That will come later, and I very much look forward to it.
We are here today to consider the Bill. Rather than shuffling off our responsibilities to another place, we should be looking at the provisions here. The “assurance” published by the Government is not worth the paper it is written on. One of their Ministers will tell us otherwise, but, perhaps more importantly, the independent legal opinion of a senior English silk commissioned by the EHRC tells us so, and his view is widely held.
I do not intend to press amendments 42 and 43 to a vote today, as I see them as probing amendments. Amendment 43 arises from matters raised in Committee, and amendment 42 arises from the terms of the agreement reached between EU and UK negotiators in December 2017. Amendment 42 would ensure that UK courts and tribunals can refer matters to the Court of Justice of the European Union, as was agreed between negotiators in December 2017 in relation to citizens’ rights.
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Paragraph 38 of the joint report from the negotiators confirms that
“the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment... This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part.”
That shows that the agreement reached back in December fundamentally threw away one of the Prime Minister’s red lines, because the Court of Justice of the European Union will have continuing jurisdiction in relation to citizens’ rights for a lengthy period. I am gratified that the words “due regard”, which were in my original amendment 137 in Committee—the amendment was only narrowly defeated—were used in the agreement.
The purpose of amendment 42 is to ensure that the agreement reached last December is reflected in the Bill, and the amendment has the objective of continuing the Court of Justice’s jurisdiction on citizens’ rights in this country up to a point. Of course that does not deal with the thorny problem of clause 6(2), which I attempted to amend in Committee without success. Amendment 42 was suggested by the Law Society of Scotland and is very much a probing amendment.
It needs to be borne in mind that it is not just politicians who are concerned about clause 6(2), as the judiciary are also concerned—there is a real issue here. The Government seem to acknowledge that there might be an issue, but they are unwilling to say what they are going to do about it. The briefing from the Bingham Centre for the Rule of Law says:
“The interpretive principles of Clause 6 must be clarified, especially so that courts and tribunals have clear guidance regarding the treatment of retained EU case law by the Supreme Court and”—
in Scotland—
“the High Court of Justiciary to enhance legal certainty and individuals’ access to justice.”
Lord Neuberger, the former President of the UK Supreme Court, has raised this issue on a number of occasions, including in interviews with the BBC and in evidence to Committees of the other place.