My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.
There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of 31 December 2023 might mean something different from what they meant when they were passed and from how courts have interpreted them if they have been considered by the courts previously. They will mean something else after the end of this year.
From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.
I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.
We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:
“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”,
before going on to list other things.
5.15 pm
We are concerned about this because of the vagaries of how a court would be expected to understand what is meant by it. Courts are asked to have mind to
“any changes of circumstances which are relevant to the retained domestic case law”.
But I do not understand what courts are meant to do with that. How are they going to decide what is relevant and what is not, and the extent to which retained domestic case law restricts the proper development of domestic law? Again, I am not sure what the Government mean by that and how a court is expected to make a decision on the back of it.
That is why noble Lords who have amendments in this group have attempted to insert additional criteria, to make sure that a court is required to look at what we have expressed as
“the undesirability of disturbing settled understandings of the law”.
This is all about getting back to clarity. As I have said before, it is about making sure that citizens and those giving advice know what the law is.
It is regrettable that some noble and learned Lords, who I know wanted to take part in this debate, in particular, have not been able to. It is one of the problems with the Government underestimating how much time we would need for the Bill. On reflection, it was probably a little unwise to allow us three days. I understand that the next day we have been given to debate the Bill is Wednesday, so will the Minister make sure that we have all the information we need, particularly on the search process for retained EU law that was referred to in the letter we received last week from the noble Baroness, Lady Bloomfield, and committed to by the noble Lord, Lord Callanan, in the letter we received from him on Friday? He made a commitment that we would receive the information we need about how retained EU law is to be identified and included in the dashboard, but we have not had that yet. Wednesday may be our last opportunity to ask the Minister questions on that so it is quite important that we have that information before we next meet.
As the noble Baroness, Lady Ludford, and somebody else—forgive me for not noting who—said, it is a problem if cases have been inaccurately referred to in the Explanatory Notes. That is a concern, so it would help if the Minister could comment on this and perhaps take the opportunity to correct it or, if we have misunderstood, to justify the inclusion of the case referred to. That would be helpful.