And his notes, indeed, although any use I make of them is entirely down to me.
I want to start by reflecting that in the last group, the noble Lord, Lord Callanan, who is no longer in his place, rather airily dismissed a question from the noble Lord, Lord Kerr, who was seeking to find out what “domestic principles of interpretation” means. The noble Lord, Lord Callanan, said, “Oh, it is quite clear: the courts know what ‘domestic principles of interpretation’ means”. Fine, we rely on the courts, as we do. I think it is an answer to the noble Lord, Lord Hodgson: the courts know what they are doing, so if we use the word “may”, that is predictability, because the courts generally follow precedent and know what they are doing. If we tell them they “must” do something, that actually constrains them in a rather awkward and unpredictable way. That is my understanding, anyway. I found the contribution of the noble and learned Lord, Lord Etherton, masterful.
The Minister told us in discussing the last group that the courts know what they are doing, but in Clause 7 they are told what to do by the Government. As I think the noble and learned Lord, Lord Etherton, said, the drafting appeared to lack any litigation or judicial experience. The noble and learned Baroness, Lady Butler-Sloss, pointed out—I cannot remember her exact words, but I interpret what she said—that she found it rather impertinent of the Government. I may be over-reading what I heard, but the courts know what they are doing and the Government come along and are prescriptive about what they are allowed to do. Arguably, Clause 7 is unnecessary, but the amendments seek at least to improve it. By the way, I am grateful to the Law Society of Scotland for pointing out that the amendments to Clause 7 are pretty complicated and convoluted, and it might have been better just to provide an alternative text to substitute a new Section 6 of the EU withdrawal Act, rather than making pages of amendments.
The fact is that the higher appeal courts are already not bound by retained EU case law and can depart from it if it is right to do so. This test is well established, having been set out in the House of Lords Practice Statement in 1966. As the noble and learned Lord, Lord Etherton, said, the Court of Appeal comprehensively considered the power to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK. It considered various factors but decided not to depart from retained EU case law. You would get another impression from government explanations and commentary.
The courts in this case, and in other scenarios, have made comprehensive analyses and have given balanced reasons why and when the courts should or should not overturn settled case law. One of the things cited in that Court of Appeal case was the need to balance the need not to
“unduly restrict the proper development of the law”
with
“too rigid adherence to precedent.”
They are conducting that balancing exercise, but they drew particular attention to the special need for certainty in the law. Therefore, they gave legal certainty a particular value which must not be overlooked.