Legal certainty on retained EU law 'undermined'

A new approach to European court rulings in the new Withdrawal Agreement Bill undermines legal certainty, Lord Pannick QC has said.

Writing in the Times today, Lord Pannick expressed concern at this change in approach and appeared likely to propose improvements in the House of Lords this afternoon when the bill faces further scrutiny. 

The withdrawal agreement bill passed the Commons stage last week with a vote of 330 to 231.

Lord Pannick, who acted for Gina Miller in her action against the prime minister’s prorogation of parliament, said peers will make “appropriate” suggestions for improvements, saying that clause 26 concerning judgments of the Court of Justice of the EU (CJEU) “requires particularly careful scrutiny”.

Clause 26 in the new Bill includes a new subsection allowing ministers to pass regulations specifying when the lower courts could depart from CJEU rulings after the transition or implementation period. 

According to the House of Commons Library, without this new provision the lower courts would have to follow the Supreme Court’s rulings on retained EU law, otherwise having to follow CJEU rulings “unless and until the substance of domestic law changed or those higher courts had departed from the rulings of the CJEU”. 

This approach, said Lord Pannick, is different to that within the 2018 EU (Withdrawal) Act and undermines legal certainty. 

Ministers would be able to “make regulations governing which of our courts and tribunals should, after the end of this year, no longer be bound by previous judgments of the European Court”. 

He said they would also be able to regulate the binding force of previous decisions of our own courts applying judgments of the CJEU.

He expressed concern that legal certainty will be undermined if the lower courts are given power to reverse well-established decisions and warned: “If settled case law could be overturned in lower courts, a flood of litigation would hit companies and individuals.

“The main beneficiaries of such litigation would be lawyers.”

Ministers should not be empowering themselves to regulate “a fundamental aspect” of the legal system, he stated. 

The decision as to which of our courts should no longer be bound by precedent, and the test judges should apply, are, he said, a matter of principle for parliament to determine – “after full debate”.

However, he said there was “no question” peers would seek to block Brexit under this bill. 

President of the Law Society of England and Wales Simon Davis said: "Plans to allow the lower courts of England and Wales to disapply ECJ judgments risk the courts being pulled inappropriately into policy decisions."

He commented that the proper role of the courts is to apply the law. "It is only the senior courts – in limited circumstances – which should possess the authority to plug legislative gaps," said Davis.

Davis said: "The Society recommends that any regulations made under clause 26 of this bill are considered carefully for any impact on legal certainty.”