I have some points which may be helpful to make at this moment, before the full discussion gets under way, and I may seek to clarify our position. However, I will of course respond to the wider debate in due course—I am not trying to cut off any of the points which might be made. The noble Lord, Lord Warner, was indeed kind to me last week; we sat down and he agreed to allow me a greater amount of time. I will therefore say words which may bring him some comfort with this point in mind.
Public health is a vital issue—there is no doubt about that. I accept that we have not thus far provided sufficient assurance to the noble Lord or to his noble backers on the issue of public health. I am therefore grateful that we have had this extra time to look at the issues that underpin the matters before us today. I have
used that time wisely in meeting with both the noble Lord, Lord Warner, and my noble and learned friend Lord Mackay of Clashfern. I thank them both sincerely for their time.
6.15 pm
I will make two points. The noble Lord made reference to Article 168 and its importance in the 2016 tobacco packaging case, particularly its influence in the decisions of the High Court and the Court of Appeal. In that case the High Court declared, as the noble Lord reminded us, that public health—Article 168—was,
“at the epicentre of policy making”,
in the EU. Going forward, the elements of this and other cases which refer to the key role of public health are, to the extent that they are relevant to EU law, preserved by Clause 6(3). This ensures that retained EU law is to be interpreted in accordance with the pre-exit case law to which it is relevant. Therefore, after exit our courts, while interpreting retained EU law, will be able to draw upon those judgments and the utilisation of the public health concept as enshrined in Article 168—indeed, the judgment which was cited. Further, all EU legislation in the area of public health which becomes part of retained EU law and domestic legislation implementing EU public health requirements will, by virtue of Clause 6, continue to be interpreted—I stress that point—by reference to relevant pre-exit case law and treaty provisions. This means that Article 168 and the fact that it was described by the High Court as being at the epicentre of EU policy-making are available to our domestic courts in future.
I also make it clear that the effect of Article 168 in the domestic law of this country before exit will continue after exit by virtue of Clause 4. I will explain. Clause 4 provides that:
“Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which … are recognised and available in domestic law”,
immediately before exit,
“by virtue of section 2(1) of the European Communities Act … continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.
Therefore, in that instance, Article 168—in so far as it was utilised by the courts when Mr Justice Green drew upon it and recognised that it was “at the epicentre” of European policy-making—will be available in the future to UK courts to draw upon, both its elements and its interpretation, and those elements will be available afterwards. I hope that those remarks are helpful in clarifying where we stand; I will of course return later on to engage with the full debate.