Then I reassure the noble and learned Lord that we are all intent on arriving in the same place; it is a question of how we arrive there. I shall deal with the routes that he touched on.
Perhaps I may correct one point: the noble Lord, Lord Adonis, referred to the work of Professor Craig and to some previous remarks that I had made about that. I commend to him what I said as recorded in Hansard. I referred to the publication of 26 February on the previous occasion; it did not come out after those remarks were made. I shall mention Professor Craig’s analysis in due course. The task of categorising such legislation would be challenging, but we would consider it as one route forward.
As we know, one of the core requirements of EU membership is the principle of supremacy of EU law. In the event of any conflict with domestic law, domestic law must give way. When we leave the EU, it would
make no sense and would not be in keeping with our principles to leave that unchanged in our law; we all recognise that.
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Clause 5(1) is therefore reflective of an important principle. It makes clear that the principle of supremacy will not apply to any domestic legislation which is passed or made on or after exit day. I had understood Amendment 32 in the name of the noble Lord, Lord Foulkes, to be aimed at the same outcome. I note that he has not moved that, although he has moved and is no longer in his place. While the principle of supremacy will end for new law after exit day, we have been clear throughout that we want to ensure certainty and continuity in the way our existing laws work. That is crucial if individuals and businesses are to have confidence that our statute book will continue to function as it does now. The Bill therefore sets out that, in relation to any pre-exit domestic legislation, the principle of supremacy will continue to apply, so far as relevant, to the relationship to retained EU law. Remaining silent within the Bill or taking a different approach would, we apprehend, risk changing the law and creating uncertainty as to its meaning and effect. I suggest that our approach to this issue strikes the right and sensible balance between ending the supremacy of EU law and maintaining coherence and continuity in the way our statute book functions.
Reference has already been made to the Bingham Centre’s report, particularly by the noble Lord, Lord Pannick. On this specific point it says that,
“the objective of clauses 5(1) to (3), namely to give retained EU law priority over pre-exit, but not post-exit domestic law, is not merely ‘a sensible one’, it is required by the Rule of Law. Anything which is not crystal clear about that fundamentally important point risks giving rise to legal discontinuity, because it leaves scope for argument about which rule takes precedence in the event of a conflict between retained EU law and pre-exit domestic law”.
The amendments put forward by the noble Lord, Lord Pannick, and the noble Baroness, Lady Bowles, seek to remove the principle of supremacy from the Bill, but then to replicate its effect in domestic law in a different way, or to modify that effect: I acknowledge that. Indeed, the noble Baroness seeks in her Amendment 32A to replicate and modify the effect of the principle of supremacy in our domestic law and create an internal hierarchy within the category of retained EU law after exit. Like the noble and learned Lord, Lord Goldsmith, I shall look in some detail at her description of that hierarchy in Hansard. There is concern that such a hierarchy, or the way that such a hierarchy would be determined, could undermine the clear position in the Bill. It is also implicit in her amendment and the hierarchy she seeks to create that we would essentially be assigning a single status for all purposes to that legislation. That may not be appropriate.
The noble Baroness’s amendment also provides, as I understand it, for the general principles of EU law to be treated as primary legislation. While that may be aimed at ensuring ongoing protection for these principles, it is unclear how this would work in practice. Not all the general principles are contained in legislation. They have been developed in the jurisprudence of the
ECJ and the CJEU over many years and are applied by the CJEU and domestic courts as an aid to interpretation and when determining the lawfulness of legislative and administrative measures within the scope of EU law. Given their very nature, there is no definitive, agreed list of existing general principles. To simply deem these non-legislative principles to be primary legislation in the way the noble Baroness proposes in her amendment would, I suggest, raise real questions of workability.
Amendment 31, proposed by the noble Lord, Lord Pannick, would remove references to the principle of supremacy from the Bill entirely. Amendment 32B would ensure that retained EU law continues to have precedence over pre-exit domestic law in the event of any inconsistency between the two. Amendment 33 would assign a single status for all purposes to all retained EU law. As I understand it, the noble Lord is therefore arguing that it is unnecessary to retain the principle of supremacy if we are to treat all retained EU law as though it is domestic primary legislation enacted on exit day and make clear that, in a conflict between retained EU law and pre-exit domestic law, retained EU law has priority.