Amendment 26 is another amendment arising from the report of the Constitution Committee and stands in my name and those of three other members of that committee: our chairman, the noble Baroness, Lady Taylor, and the noble Lords, Lord Norton of Louth and Lord Beith.
This amendment focuses on Clause 4(2)(b), which excludes from Clause 4, and therefore excludes from the scope of retained EU law, as defined in Clause 6(7), rights and obligations which arise under an EU directive but which,
“are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before exit day (whether or not as an essential part of the decision in the case)”.
The problem with that was summarised in paragraph 38 of the Constitution Committee’s report. We said that this involves,
“ambiguities in the interpretation and effect of clause 4”,
which,
“will inevitably cause legal uncertainty about a fundamental provision of the Bill”.
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The fundamental uncertainty is the meaning of the words “of a kind”. We discussed this briefly earlier this afternoon. I understood the Minister, the noble and learned Lord, Lord Keen, to say in response to a question from the noble and learned Lord, Lord Falconer of Thoroton, that in this context “of a kind” means that prior to exit date there must have been a court case, either domestic or in Luxembourg, on the specific provision of the relevant directive, and that it is not good enough to say that the principles decided in other cases show that this directive confers rights in domestic law.
The Minister will, I hope, clarify the Government’s position but I, for my part, have difficulty in seeing how that type of narrow approach follows from the language of Clause 4(2)(b). The words “of a kind” suggest to me that it must suffice to rely on the
principles stated by the Court of Justice, or a domestic court in other cases. Indeed, I would be very concerned if the general approach were not the applicable approach under this legislation; otherwise, that would conflict with the Bill’s purpose—to read across, as we have discussed, a snapshot of the EU law obligations into domestic law as at exit day.
Surely, if I can show that I have on or before exit day directly effective rights under a directive applicable to the EU which has not been properly implemented in domestic law, then I must, after exit day, be entitled to rely on those rights, even if there has been no court case relating to that specific directive, either in Luxembourg or in the courts of this country, but I can show that, had such a case been brought before exit day, I would have succeeded under the principles established in other cases in domestic courts or in the Court of Justice.
Therefore, the Constitution Committee would very much welcome some guidance from the Minister on what the Government intend in this area. The committee concluded in paragraph 38 of our report that the ambiguities in Clause 4(2)(b),
“will undermine one of the Government’s main objectives in bringing forward this Bill. The ambiguities need to be resolved”.
I suggest to the Minister that, because of the ambiguities inherent in the phrase “of a kind”, it would be very helpful if the Government could bring forward on Report an amendment that clarifies exactly what they mean so that there is no doubt. I beg to move.