My Lords, these amendments fall into two, possibly three, groups. I shall start with the group that has been the subject of the recent speeches from noble Lords—the interpretation of EU retained law. The amendments tabled by the noble
Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Krebs, particularly require that the preambles and recitals should be capable of being taken into account when it comes to interpreting EU law. They are completely right, as are other noble Lords who have spoken, that at the moment under EU law the recitals and the preambles are an important part of the interpretation. I have had the privilege of appearing on a number of occasions before the European Court of Justice, both in my capacity as a government Minister and before that as a lawyer retained to argue cases, and it absolutely is the case that, unlike the techniques that we apply when we come to interpret British statutes, the preambles and recitals are very important. It therefore would be significant that they should be capable of being applied in the interpretation of EU retained law after exit day. If they were not it could lead, for example, to the result that a piece of law applied and interpreted before exit day using the preambles and recitals could be interpreted differently after exit day, and that would be damaging to legal certainty.
I very much doubt that the Government intend that there should be any difference, and I believe they intend that the preamble and recitals should be capable of being used in the interpretation, as they so often are. The question then becomes whether it is important and right to make reference to that specifically in the Act as it goes forward so that everybody, including the public, know that application of the recitals and preambles to these EU instruments is something that Parliament intends. Where I might part company a little with the way that Amendment 58 is drafted is in its apparently requiring that the interpretation should be in accordance with the recitals and preambles. The recitals and preambles should certainly be taken account of and proper regard should be given to them, but it is possible that requiring that they be interpreted in accordance with the preambles is going a little too far. No doubt the Minister will have something to say about that, as I hope he will have something to say about the principle.
The principle, which I support from these Benches, is that it should be clear, one way or another, that the recitals and preambles should be capable of being taken into account in interpretation because that is an important part of understanding that legislation. I have no doubt that the noble and learned Lord, Lord Mackay of Clashfern, is right that the process of transposition which is intended by Clause 1 does not involve excising the recitals and preambles. What will come in is everything that is in that which is defined as EU retained law at the moment, but that does not quite cover the point about whether there is a risk that somebody might think that they are not allowed to, or should not, take account of the recitals and preambles. Of course, that depends on what the judges say. That is the principle in relation to the first part of this group of amendments. I support the need to be clear that those recitals and preambles can be taken into account, but will listen very carefully to what the Minister has to say on that.
4 pm
The second part of the group is a little different. The noble Baroness, Lady Bowles of Berkhamsted, made an important speech last week in relation to the
different ways we may look at validity in the future, in particular by reference to the origins of particular instruments. I said then, and continue to think, that it is important to study carefully what the noble Baroness said when we return to that issue.
I would ask the noble and learned Lord the following question, which emerges from the amendment which has been put forward. There appears to be a potential inconsistency between two parts of the Bill. Paragraph 3 of Schedule 1, which we looked at in discussing general principles of EU law the other day, states:
“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”.
The Minister will recall that I spoke then as to why we thought that was the wrong approach and that general principles of EU law should continue to be capable of founding causes of action, including, potentially, for disapplication of executive acts or legislation. We will no doubt come back to that as well. I referred for example to the Walker case, in which the general principles were relied on in relation to pension rights. Members of the LGBT community will be very unhappy if they learn that the Government’s intention is that this principle should not be capable of being applied to their benefit afterwards.
We see that statement in paragraph 3 of Schedule 1, but on the other hand the provisions to which the noble Baroness has drawn attention appear to say that the question of validity can be considered by reference to the general principles, which looks as if it is not just a question of interpretation but that somehow the general principles have an impact on the validity. I would like to understand from the noble and learned Lord, now or afterwards, just how those two provisions sit together. Is it intended that validity should still be determined by reference to general principles of EU law? If so, how does that square with the provisions in the schedule?
The noble Baroness explained the purport behind Amendment 60, and I look forward to hearing what the Minister has to say on that issue too.