My Lords, the Government’s position is that this is not a straitjacket. The courts are required to look at three things: the fact that the retained EU case law is made by a different court, whether there has been a relevant change of circumstances, and how the proper development of the common law should continue in future.
As to why we have not included other considerations—notably, legal certainty—the Government’s position, which noble Lords may or may not agree with but this is the explanation, is that once you write down the importance of legal certainty, that is potentially a recipe for passively doing nothing and continuing to be a rule taker for 20 years to come. That is not the consequence of withdrawing from the EU. The courts can continue to look at it, but that is the reason why the Government have drafted Clause 7 as it is.
I hope I have dealt with most of the issues raised about Clause 7 one way or another. There is the reference procedure, and noble Lords, and noble and learned Lords, have made the point that higher courts always have the discretion whether to take a case, and they should be able to decline it. I completely understand that point. The Government had thought that the ability of those superior courts—the higher courts or the Supreme Court—to decide whether what they were being asked to do was relevant and whether the point raised was of general public importance was sufficient protection and would enable them to decline to hear the case if that were so. I must say that the circumstances in which a lower court actually gets as far as making a reference and identifying a point of public importance that a superior court feels it should not hear seem to me, if I may say so, somewhat remote, but we can have another look at the drafting if there is a need for further reassurance. I cannot commit to changing it, but I can commit to looking at it and discussing it with the relevant persons.