My Lords, I hesitate to follow the very careful analysis of the noble and learned Lord, Lord Neuberger, but perhaps I can add a few words. We are all trying to find the best way of expressing in clear and simple language, in statutory form, the guidance that the courts and tribunals will need about the interpretation of retained EU law. In particular, Clause 3 is about direct EU legislation which we will be receiving in the language of the directives and regulations to which this clause refers.
The position is fairly clear about judgments or decisions of the CJEU before exit day. That is retained EU case law which is referred to in Clause 6(3) and we are not in any difficulty on that, rather, it is what to do about the future. Had it not been for the concerns expressed by the noble and learned Baroness, Lady Hale, and the noble and learned Lord, Lord Neuberger, about the risk of being criticised for being drawn into areas of policy, I would have been content to see Clause 6(2) deleted and to rely simply on the normal, traditional way in which comparative law is applied by courts up and down the country. I have been doing this ever since I started sitting as a judge. Of course, there are examples outside the particular area we are dealing with here of conventions to which we are a party and which need to be interpreted. One looks at other jurisdictions to see how the language of a convention is interpreted and applied. This is a normal part of our jurisprudence and it would have been enough. However, I recognise the force of the points made in their evidence to the Constitution Committee and today by the noble and learned Lord, Lord Neuberger and I think that we have to do something to give the guidance for which they are looking.
One should also bear in mind also that it will be some time before the Supreme Court handles cases of this kind. We are talking about tribunals as well as courts at every level. I am sure that when the Supreme Court gets hold of the thing, it will be astute enough to give the kind of guidance that one normally gets from the higher courts, but we have to look at the beginning of the process.
On the table at the moment we have Clause 6(2) as it stands and Amendment 56 from the noble Lord, Lord Pannick. I hope that the noble Lord will forgive me when I say that I think his amendment is like the curate’s egg. There are bits of it which I rather like and bits which I would prefer to drop, and the same goes for Clause 6(2). I suggest an amalgamation of the best bits of the amendment in the name of the noble Lord, Lord Pannick, and the best bits of Clause 6(2).
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