The EU (Withdrawal Agreement) Bill, which passed the House of Commons last week, ought not to be controversial. It only implements, in UK law, a Brexit deal which parliament backs in principle, and for which the government has just secured a mandate in a general election.
Yet the detail of the bill still matters. A good EU(WA)B would leave behind a statute book that made sense, with clear provisions on how different types of law interact with one another: laws passed pre- and post-Brexit, by the EU institutions and by our own, in the deal and outside it. A bad bill, by contrast, would leave uncertainty and confusion in its wake, generating too much expensive work for lawyers as they try to advise confused citizens on their rights and duties, thrusting them towards the courts to hash it out, and deterring businesses from making decisions in the meantime.
Before the election, the government published a largely sensible version of the bill. Since the election, however, the bill has got worse. Among the government’s dodgy additions are a new Clause 26, which throws doubt on the status of judgments of the European Court of Justice.
The position now, under laws already passed by parliament in 2018, is that all UK courts except the Supreme Court will be bound by pre-Brexit decisions of the ECJ. The Supreme Court will be able to depart from pre-Brexit ECJ decisions in the same circumstances it would depart from its own previous decisions—“when it appears right to do so,” but in practice, very rarely.
The first version of the government’s bill did not touch this regime, but the post-election version fiddles with it. The new bill would empower ministers to instruct lower courts, before the end of the transition period, to depart from ECJ case law too—and to specify the circumstances in which they should so depart.
The new clause is bad for legal certainty in so many ways. Will ministers use that power at all, or let it lapse at the end of the transition? If they do use it, which courts will ministers tell to ditch ECJ case law? Will those courts have a mere power to depart from ECJ case law, or a duty to do so? In what circumstances? Will there be different…