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Leaving the EU: Legal Systems

Volume 638: debated on Thursday 22 March 2018

3. What assessment he has made of the potential effect of the UK leaving the EU on the operation of legal systems in England, Northern Ireland, Scotland, and Wales. (904511)

The Government have introduced the European Union (Withdrawal) Bill to provide for legal continuity when the UK leaves the EU. The Bill minimises disruption to each legal system by preserving current EU rules and conferring powers on UK and devolved Government Ministers to make necessary corrections to those rules. Once we have left the EU, it will be for Parliament and the devolved legislatures to decide whether it is appropriate to make changes to the retained EU rules that operate in each legal system.

The Prime Minister has made a number of concessions regarding the jurisdiction of the European Court of Justice after Brexit. Given that the Scottish Government’s EU continuity Bill provides that, when exercising devolved jurisdiction, Scottish courts may have regard to the decisions of the ECJ, is it not time to amend clause 6 of the European Union (Withdrawal) Bill to the same effect?

As the hon. Lady says, the Government have been realistic about the degree to which our courts are likely to look at the jurisprudence of the Court of Justice of the European Union, at least until the point at which our law starts to diverge from what will then be European Union law. As I understand it, there was a constructive debate yesterday on clause 11 of the withdrawal Bill in the other place. I hope very much that we will make further progress and that the Scottish National party will engage in that with the proper spirit.

Does the Attorney General agree that one of the advantages of coming out of the European Union superstate in just over 365 days’ time is that decisions will be made by not a foreign court, but our Supreme Court?

My hon. Friend is right. One of the things that we rather suspect led a great number of our fellow countrymen and women to vote for European Union exit was exactly that prospect.

My hon. Friend the Member for Glasgow Central (Alison Thewliss) asked the Attorney General to comment on clause 6 of the EU (Withdrawal) Bill. It is not just the Scottish Parliament that thinks that clause 6 is inadequate. Yesterday, the President of the United Kingdom Supreme Court told the House of Lords Constitution Committee that clause 6 as it stands is “very unhelpful” and that it could leave the judiciary at risk of

“appearing to make a political decision”.

What is the Attorney General going to do to address not just the concerns of the Scottish Parliament, but those of the President of the UK Supreme Court?

We are already doing a great deal to attempt to reassure the judiciary. The hon. and learned Lady is right to say that yesterday Baroness Hale raised, as others have done before her, concerns that the judiciary have expressed about being put in a position where they are expected to make a political judgment. That is not the Government’s intention. We do not expect judges to make political judgments. Indeed, we absolutely want them not to do that. We do want them to be able to interpret the law as it will stand post exit, with all the necessary guidance we can give them. We will continue to work with them to provide the necessary clarity