The primary source of concern is clause 26(1) of the bill, which gives ministers powers to require courts and tribunals to deviate from retained EU case law and, instead, apply ministerial guidelines. In a report published this week, the House of Lords Constitution Committee branded the cl 26(1) powers ‘inappropriate’ and ‘constitutionally significant’,and called for their removal from the bill.
In contrast, the previous version of the clause―s 6(1) of the EU (Withdrawal) Act 2018―provided that retained EU law would be interpreted by courts and tribunals in line with case law applicable on or before exit day.
In the report, the committee agrees that ‘it is inappropriate for courts other than the Supreme Court and the Scottish High Court of Justiciary to have power to depart from the interpretations of EU case law’.
Second, the government’s proposal to consult with senior judges on the applicable tests for departures ‘is not an adequate substitute for the determination of such issues in adversarial proceedings in open court, open to interventions and with the assistance of counsel’.
Third, the committee said there ‘is no case for such broad and constitutionally significant regulation-making powers, the effect of which may undermine legal certainty’.
Baroness Taylor, chair of the committee, said: ‘The government should reconsider the implications of cl 26 and the potential for significant legal uncertainty if lower courts are to be given the power to depart from previous European Court of Justice case law and previous domestic interpretations of retained EU law.’
The committee also recommends the government reinstate provision for parliamentary oversight of negotiations and allow greater scrutiny of Henry VIII powers and other delegated powers.
Meanwhile, the Institute for Government has warned the government only has time to agree a goods-only free trade agreement in the 11 months before the end of the transition period. In a report published this week, ‘Getting Brexit Done’, it said the Northern Ireland Protocol, on regulatory and customs checks, ‘is almost certainly undeliverable’ by December 2020.
