European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Baroness Bryan of Partick (Lab)]

My Lords, I think it is fair to say that, had we not been in the EU when devolution occurred, we would most certainly have moved towards a more federal arrangement in this country. The fact that our regulations were shared across the UK, even in devolved areas, covered the need for a federal arrangement where the different Assemblies and Parliaments could come together. Now that we will be out of the EU, there is a fair degree of urgency to address this. How are we going to devise regulations in the future? If we start that process by not including the Sewel convention, we start from a point where levels of disagreement are such that it will be hard to have that debate in a calm, careful way. We should accept this amendment, but also go on to explore the ways in which, where devolved matters intercept, we will work together in future across territorial areas. I hope that we can accept this amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise briefly in support of this amendment, to which I have added my name. I explained earlier today, and yesterday, why it is vital for this Government to recognise the importance of devolution as we go forward. This is a purely symbolic clause which does not make any difference. It could be left out. But, if it is to go in, can it please acknowledge that we live in a United Kingdom that has changed and where we must recognise the devolved legislatures? Conventions are of the utmost importance in this respect and should be recognised in the Bill.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

If I may, I will follow on from the points made by the noble Duke about the aspects of the Bill that deal with relations between the constituent parts of the union.

It seems to me that it is inevitable that, as the Bill proceeds and as devolution has to be reconsidered, significant changes may be required to the schemes of devolution as envisaged in the original Bill. Therefore, it is important that, in this Bill, we have regard to two issues. The first is that a terrible precedent would be set if we altered the devolution legislation other than by primary legislation of this House. It is important to recall that the devolution statutes now form part of our constitution; if they are to be amended, they should be amended by primary legislation.

Secondly, going forward, although there may be reasons why parliamentary supervision, and parliamentary time, in relation to the conduct of the negotiations might not be a good idea—I say nothing about that—it is equally important that we have regard to the fact that the devolved Governments have a vital interest in all the negotiations. If we are to go forward with a stronger union and make new arrangements for devolution, it is important that we start as we mean to continue—that is, with the devolved Governments being closely involved in the negotiations and consulted widely as to where we are going, because that is essential for the future of the union, and, secondly, ensuring that any changes made to the devolution statutes are not made using the powers that this Bill intends to confer.

I hope that the House will consider these two points very carefully because, when we enter a future outside the European Union—and I am looking solely to the future, not the past—I hope that we have a union that is stronger. But that strength will not be achieved if we do not start as we mean to continue, and that is by not altering the devolution settlement schemes by way of delegated powers and again leaving out of the way in which the negotiations are conducted obtaining views from and consulting widely with the devolved Governments.

Brexit: Withdrawal Agreement and Political Declaration

Lord Thomas of Cwmgiedd Excerpts

Thursday 10th January 2019 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

It is a pleasure to follow the noble Lord, Lord Monks, because I too agree with the conclusion that he has reached. I support the Motion in the name of the noble Baroness, Lady Smith of Basildon. Many powerful reasons have been given in the debate in December and over the last day or so that support that view. There is, however, one issue I wish to raise that is different, but which illustrates the problems that this deal will cause. In my view, we should focus on the longer-term effects of the deal and what it does for our future negotiations. That issue relates to the position of the UK as the leading centre in the world for international, commercial and business litigation. It is chosen by countries and businesses from all over the world. I appreciate that, in speaking about work for lawyers, I am not adopting a cause that wins universal popularity. However, it is important to recognise the substantial contribution, measured in billions, that this work provides for the UK economy and, importantly, for Her Majesty’s Treasury.

After the referendum, a good deal of work was done by the legal profession and the judiciary on what was needed to safeguard the pre-eminence of the United Kingdom by ending the uncertainty on which our competitors were starting to rely and providing the certainty that those negotiating a jurisdiction clause require. In late 2016, a paper was presented to the Ministry of Justice and other arms of government. In the summer of 2017, the Government were asked urgently to take a number of steps, and particularly to work with the EU to ensure that there is a simple and flexible regime for the mutual recognition and enforcement of civil judgments on our departure from the EU, when we would cease to be a party to the EU regime. In August 2017, the Government published a paper for partnership, with cross-border civil judicial co-operation with the EU after we leave. This was a pragmatic and realistic way forward, which I fully supported then and support now. It would provide the certainty so badly needed and support the ongoing work that the judiciary and the legal profession are undertaking to try to preserve the pre-eminence of the UK in this area.

The question for me is the effect of the deal on the position of London and the rest of the United Kingdom. Plainly, the continuation of the status quo by the withdrawal agreement presents no problem in itself, but the all-important political declaration is a matter on which I wish to focus. It provides nothing of the Government’s August 2017 proposals on the enforcement of civil judgments. I surmise that this is not because the Government have changed their mind, but rather that this was one of the matters that they were unable to include in the political declaration. Why is that? It is not because of its lack of importance, but because the negotiating position of the UK has become so weak, for the reasons given, even at a time when we still have leverage through the financial contribution that we are to make.

The next stage of the negotiations is more important. In considering that, we ought to look at the position of the EU 27, as their attitude is a vital factor. In this area, they are our competitors—and they have not been idle. In Paris and Amsterdam, commercial courts have been recently established where the proceedings are conducted entirely in English. They are being actively promoted as a much better alternative to the UK because their judgments will be recognised and enforceable across the EU and because of the certainty of their position. Germany and Belgium are considering doing the same. Last Friday, the Taoiseach was reported to have said that the Irish Bar Council and the Law Society took the view that,

“one of the areas that could benefit from Brexit are legal services, on the basis that Ireland could … take some business from the UK”.

Once lost, this work, which contributes so much to our economy, would be difficult to get back.

Let me turn briefly to the next stage of the negotiations. It is inevitable from the deal that the UK’s negotiating position will be very much weaker in many respects. The deal in effect enables our former partners in the EU to control the pace and outcome of the negotiations to their advantage and to our disadvantage, particularly through the leverage that the backstop provides. I agree with the many who have pointed to the multitude of other flaws in the deal. Long and complex negotiations—for that is what they will now be—will advantage our competitors in the EU 27, as they will be able to continue to exploit the uncertainty so caused. For this and for all the other reasons given during this debate, the deal looked on as a whole, and its medium and long-term effects, will have a very damaging effect. In my view, those who must make the decision in the other place would be well advised to reject it.

I see the force of the point about the dilemma we all face in the UK, as made so eloquently by many, including the noble and learned Lord, Lord Hope of Craighead. The issue for the decision-makers is to weigh the manifest disadvantages of this deal against the alternative courses of action which have been explored in the debate. By my support of the Motion, I would rule out a no deal, but in my view the other alternatives, for the reasons given by others which I need not repeat, are all options that will do much less serious medium and long-term harm to the UK economy than entering into this deal. I include within the other options another referendum, as it is clear that the effect of Brexit will be greatest on the young generation. They should be given the chance to express their views in the light of what is now known.

European Union (Withdrawal) Bill

Lord Thomas of Cwmgiedd Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Faulks]

My Lords, the genesis of this debate is at least in part the evidence that the former President and current President of the Supreme Court gave to the Constitution Committee of your Lordships’ House. We had a good debate in Committee. It is clear that the judges wanted clarity as to how they should approach decisions of the European Court of Justice post Brexit, perhaps not least because of the difficulty they had relating to the Human Rights Act in determining what “taking into account” meant. Clarity would certainly have followed if they were told either to follow or to ignore the decisions, but that would not have been sensible or what the Government wanted.

As a result, we were engaged in something of a struggle to find the right formulation. The word “appropriate” in the original Bill received an almost unanimous no. “Relevant” is clearly important, but in some senses it is hardly necessary because the court will not take into account a decision that is irrelevant. I tabled an amendment, which is before the House, saying “relevant and helpful”. I readily concede that “helpful” is not a word that often finds its way into statute. However, I was quoting precisely what the noble and learned Baroness, Lady Hale, recently said about how the court would regard, for example, foreign law and whether it would follow it because the reasoning was persuasive, rather than because it was bound to follow it.

Therefore, “relevant” on its own is, frankly, suboptimal, but I have been nevertheless persuaded by what my noble and learned friend said. It is the result of a number of heads being put together and the best conceivable solution being found. I was particularly reassured by his answer to the four points raised by the noble Lord, Lord Pannick, not least his answer to his fourth point about the position of the Lord Chancellor, which I am sure everybody in this House would support.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two observations, having raised this matter at Second Reading. I am very grateful to the Minister for his amendment, which certainly brings about clarity and certainty. But, having discussed the matter with others, I want to make sure that the certainty and consequences are clearly understood.

The draftsmanship is elegant, because although under subsection (2) a court may have regard to decisions made by the European Court of Justice after exit so far as they are relevant to any matter before the court, making that provision subject to subsections (3) to (6) means that a court could do so only to clarify the meaning or effect of retained EU law as at the date of exit. It therefore has the effect of confirming what I describe as the ossification of retained EU law as at the date of exit. Only the Supreme Court is permitted to depart from any retained EU case law under the test set out in subsection (5).

Although certainty is therefore brought about, it is at the price of ossification, other than by appeal to the Supreme Court. Ossification is a principle alien to the common law, which, while it has always sought certainty, has also always allowed a significant degree of flexibility to enable the law to develop and adapt to changing times. The principles of common law development are thus denied in the application of retained EU law to any court other than the Supreme Court.

A further feature of the clause is that the Supreme Court is given no guidance as to how it may exercise its right to depart from decisions of the European Court of Justice, save by reference to the 1966 practice statement and the subsequent case law. I think it right therefore to remind the House that it is giving the Supreme Court a very considerable degree of untrammelled power, subject, of course, to the right to reverse any such decision. I am very grateful to the Minister for the assurance he has given that if, in the exercise of that power, decisions are made they will be fully defended, but it is a considerable power.

I will make two further observations. First, a consequence of confining the power to depart from European Court decisions to the Supreme Court may well mean a significant increase in the case load of the Supreme Court. As we know, it has much else to do. I therefore ask the Minister if he would reconsider amending subsection (5) to permit the Courts of Appeal of England and Wales and of Northern Ireland, and the Inner House in Scotland, to be given a similar power. Not only would that alleviate the burden on the Supreme Court, but the experience of many sitting in the Supreme Court has shown that it is generally greatly assisted if it has a prior judgment of the Court of Appeal or Inner House on the question before it.

The final observation I will make echoes what the Minister said. As was often said in Committee, the Bill seeks to provide for a functioning statute book on exit in the event that there is no agreement with the EU. It has also been said there will have to be significant amendment by at least one further Bill in the event of agreement. If, for example, it is agreed that certain fields of our law or regulation must remain aligned for the purposes of non-tariff barriers, it will be necessary to ensure that the courts can take this into account in interpreting retained EU law and therefore have regard to subsequent European Court decisions to ensure that the law or regulations remain completely aligned. It is therefore, I regret to say, a matter that, in the event of an agreement, we shall have to return to at a subsequent stage. Again, I emphasise my thanks to the Minister for the discussions he has had and the certainty and clarity he has brought about.

[Lord Hope of Craighead (CB)]

My Lords, we have the luxury of having three different formulations for a possible amendment to Clause 6(2) thanks to the ingenuity of the noble Lords, Lord Pannick and Lord Faulks, and the Minister. For my part, I prefer the Minister’s version, which seems to be, in a subtle way, a little more generous than the formulation of the noble Lord, Lord Pannick, which is:

“A court … may have regard to anything done … after exit day … where it considers it relevant to the proper interpretation of retained EU law”.


The government amendment says,

“relevant to any matter before the court or tribunal”.

I suspect that most of these issues will be issues of interpretation, but it is perhaps wiser to have the broader formulation just in case the formula in the amendment from the noble Lord, Lord Pannick, is too tight to include something else.

As for “relevant and helpful” from the noble Lord, Lord Faulks, one can regard something as relevant and unhelpful as well as helpful. Therefore, I am not sure that it really adds very much. Obviously, a court would not do anything with it if it is unhelpful. I suspect that those words are surplus to what one is really talking about.

I have two other points. So far as Amendment 23 is concerned, the additional words:

“Subject to this and subsections (3) to (6)”,


are necessary because of the change from the prohibition in the original formula—that is,

“need not have regard to”—

to the new formula, “may”. When you use “may” it is as well to have the cautionary words just to make it clear. There is another view: that the amendment is unnecessary because the court will, of course, look at the entire section in understanding what it is supposed to do, but it does no harm to put those words in. In the interests of clarification, it is helpful to have them there.

Finally, I add a word of support to the point the noble and learned Lord, Lord Thomas, made about allowing the Court of Appeal and the Inner House, as well as the Supreme Court, to consider themselves not bound by retained EU case law. One has to bear in mind that the only way these issues will reach the Supreme Court under the formula in the Bill is by means of an appeal. It is not suggested that there would be a direct reference to the court. I am sure the court would not want that, because it would wish to have the issues properly focused by proceedings in the lower court.

I may be corrected if I am wrong, but I suppose that use can be made of the “leapfrog” procedure: if something comes up at first instance, it is possible to leap over the Court of Appeal direct to the Supreme Court. That may be a useful avenue in urgent cases. Usually, the Supreme Court is helped by the decision of the lower court. If the argument is focused at the lower court, it may not agree with it but it will at least have flushed out points that need not trouble the Supreme Court when dealing with the issue at the later stage. There is therefore something to be said for allowing the appeal courts to take up the same position as the Supreme Court in this field.

I simply endorse what the noble and learned Lord, Lord Thomas, said as something that the Government might like to consider. I do not know whether they are considering discussing the matter with the President of the Supreme Court to get her view, but there might be something to be said for that as well.

European Union (Withdrawal) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, many have spoken in the context of the tripartite relationship between the Executive, Parliament and the judiciary, of the balance to be struck in this Bill between Parliament and the Executive, and, of course, of the flawed nature of this Bill. I wish to speak solely in relation to the position of the judiciary as affected by this Bill and of maintaining its independence. Noble Lords may at once think that it is quite unnecessary for me to speak about the independence of the judiciary in this context, but it has become clear, not only from what has happened in this country but also from what has happened elsewhere, that the independence of the judiciary depends to a material extent on the legislature and the Executive doing what they can to keep the judges out of political decisions and the judges, of course, doing what they can to keep themselves out of such decisions.

The present draft of Clause 6 requires the judges within the United Kingdom to make decisions that could well be, or certainly be seen to be, political in nature. It is essential that Clause 6 be amended to that effect. This is not the time to develop the arguments, for in any event, they are set out in the excellent—or perhaps I should say, to echo the words of the noble and learned Lord, Lord Goldsmith—brilliant report of the Constitution Committee. There is a solution suggested; it needs discussion, and I hope that by the time the Bill comes back to this House, there is a properly thought-through amendment to that clause.

Although it is Clause 6 that directly affects the position of the judiciary in our constitution, it is important also to appreciate the potential effects on the judiciary and its independence of the present clause on devolution—Clause 11—and of Clauses 7 to 9. Those clauses have been referred to by my noble and learned friend Lord Hope as the Cromwellian clauses. I prefer the title Henry VIII. That is not merely because of loyalty to my predecessor, my noble and learned friend Lord Judge, who has done so much under that name to describe the real problems in the extensive use of those clauses and the dilution of parliamentary sovereignty that has resulted, but also because it was Henry VIII who abolished the separate laws of Wales.

It is clear from legal developments in the past decades that recourse to the courts will be used in any attempt to seek resolution of issues that have not been subject to decision by Parliament. That is a good enough reason in itself for decisions to be taken here. There is, as is well known, a ready route to challenge legislative powers exercised by Ministers, but probably not so well appreciated, to review issues in the devolution legislation which are not contained in well-thought-through—I underline those words—and clear provisions. The Welsh devolution cases are a pointer to the problems that can occur.

I have sympathy for the Government and their highly professional legal service when they have to bring about changes to a vast volume of legislation faced with the pressure of time and the uncertainty caused by the absence of agreement with the European Union. In those circumstances, I very much hope that this House and the Government will be prepared to explore alternatives in the legislative process, which have been mentioned by many noble Lords, and the use of expert bodies, such as the Law Commission, to assist by their advice in the process of scrutiny, which is difficult, and avoid unintended consequences.

It is the position of the judiciary that I wish to emphasise. The noble Lord, Lord Kakkar, forcefully pointed out that these issues are a matter of real concern to the judiciary as they affect it. So far, the judiciary has been one of the institutions that has remained largely unaffected by the issues relating to Brexit. However, the events of November 2016 arising out of the first decision in the Article 50 case, in which I participated, demonstrated the importance of the role of the judiciary in our constitution and social order, the relative fragility of its independence and the necessity of Parliament doing, as it did then, all it can to safeguard the independence and position of the judiciary.

There is a further factor which until recently may have been overlooked: the significant contribution our legal system makes to our economic prosperity. We should not ignore the fact that the events of November 2016 were publicised worldwide and commented on. I therefore hope that Parliament will do what it can so that the judiciary’s independence and reputation are not put in issue again.