My Lords, first of all perhaps I may observe that, pursuant to Clause 3 of the Bill:
“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day”.
That brings over direct legislation, including recitals, as I believe a number of noble Lords have understood.
The Government’s position is that, as long retained EU law remains as part of the UK statute book, it is essential that there is a common understanding of what the law means. Therefore, to maximise certainty, any question as to the meaning of retained EU law will be determined in the UK courts, in accordance with the CJEU’s case law as it exists immediately before the UK leaves the EU. That is set out in Clause 6(3). Any other starting point would lead to a change in the law and risk creating considerable uncertainty, if not confusion, on exit day.
However, we do not want to fossilise that case law. That is why, pursuant to Clauses 6(4) and 6(5) of the Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to depart from that situation when employing their own jurisprudence. The test would be that which they apply at the present time in departing from their domestic jurisprudence.
While it would be fair to say that the Constitution Committee has not always seen eye to eye with us on the Bill, on this particular issue they described the Government’s position as clear and sensible. Retained EU law will of course be modified after exit day by Parliament, and indeed by the devolved legislatures. It is right and sensible that it should no longer be interpreted in line with retained EU case law, following those modifications. But, in other cases, it may be appropriate that, even where there has been some modification, it should continue to be interpreted in that same way. What we have in mind is a situation in which a modification simply changes a reference, for example from an EU commission or agency to a UK public body, but leaves the substantive scheme of the retained EU law exactly as it was before. That is the purpose of Clause 6(6): to ensure that, where there is a modification
that has no impact on the operation of the scheme, we should continue, pursuant to Clause 6(3), to amend in an appropriate fashion.
Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to unmodified law from Clause 6(3). But one effect of that would be to cast doubt on the operation of Clause 6(6) and the ability of modifications to retained EU law to displace the binding effect of pre-exit CJEU case law. That uncertainty, we suggest, should be avoided.
Can I come on to the issue of recitals?