My Lords, I am grateful for the contributions to this debate and I would like to respond to the points made.
First, I acknowledge the contribution of the noble Lord, Lord Beith, who pointed out that consultation has taken place. I emphasise that the terms of the legislation seek to strike a balance which is intended to prevent an overwhelming rush of work to the court at the highest level. We also intend to maintain judicial independence.
My noble and learned friend Lord Mackay of Clashfern raised the matter of the approach which he had urged at an earlier stage whereby there should be a means of referral from the lower courts to the higher—to those courts which are capable of taking a decision in these matters. There is no provision for any courts to refer below the Court of Appeal, including the magistrates’ court. Matters will find their way into the appellate level of courts capable of hearing these matters in the normal way by decisions being taken and themselves appealed against. It seems very likely that appeals in these contexts would be more or less inevitable given the novelty of the situation but also acknowledging the likely temporary nature of the situation as the law recovers full independence.
The noble Lord, Lord Thomas of Gresford, spoke about there being an allergy on the part of the Government and the Conservative Party against mention of the CJEU. Having gone over my notes and counted four occasions when I mentioned that court in the first two pages of my notes, I am driven to conclude that the noble Lord was speaking figuratively, although at the end of his speech he said that I had perhaps not yet developed the allergy.
On the matter of the response of the consultees, the noble Lord said that I might perhaps be exercising something of a sense of humour when I spoke positively
of it, given the overall terms in which the consultation had been responded to. However, I take from the consultation that there was support for the cautious approach taken in terms of the SI, balancing competing needs between access to the courts, the need to avoid a particular higher level of court being overwhelmed with applications and the need for legal clarity. In the circumstances, it seems inevitable that there will be some increase in the burden of work on the higher courts resulting from the unprecedented decision of this country to leave the European Union. That degree of disruption is, as I say, inevitable. However, I submit that the terms of this SI admit a useful and productive method by which that new burden of work can most readily be assimilated over time.
On the noble Lord’s point about the range of courts capable of taking on this function with regard to the statutory instrument, he made reference to the Lands Valuation Appeal Court in Scotland. The seven courts were chosen specifically for their appellate status, the availability of appeals to them and the absence of availability of appeals from them.
The noble Lord, Lord Ponsonby of Shulbrede, indicated the Labour Party’s position and sought reassurance with regard to the concerns that were raised by trade unions and the legal profession. Nothing in this statutory instrument seeks to impose at all on any of the courts any view which the Government may hold. Indeed, the statutory instrument may be read as emphasising the importance that the Government place on the independence of the courts and of judicial discretion. Other than through reiteration of the 1966 test laid down by the House of Lords, there is no prescriptive list of factors to be taken into account by the courts taking on this function.
The Government see this instrument as an important part of the United Kingdom’s future standing to ensure that more courts are able to depart from retained European Union case law but in a timely and appropriate manner. We consider this to be a proportionate and sensible approach to this unprecedented and novel situation as the United Kingdom becomes the first country to leave the EU. We consider that extending the power to courts at the Court of Appeal level, to the Court of Appeal and to its equivalents, strikes the right balance between the provision of legal clarity and certainty and enabling the law to appeal more flexibly.
I am grateful for your Lordships’ learned contributions to the debate. I hope that your Lordships agree that the statutory instrument is a necessary one, therefore I commend this draft instrument to the Committee.