Lords Amendments to Clause 6: Interpretation of retained EU law
Lords Amendments 6 to 8
29 Lords Amendments 6 to 8 would provide greater clarity that UK courts and tribunals can have regard to anything done by the Court of Justice of the European Union (CJEU), another EU entity or the EU itself, after the UK leaves the EU. They would not change the underlying intent of the clause that, while the UK’s domestic courts and tribunals should not be bound by anything done by the EU after exit day, they should be able to take it into account.
30 The amendments would remove the words "need not have regard to" and "considers" from clause 6(2). They would also remove the reference to courts having regard where "appropriate" and instead provide that courts may look at post-exit CJEU case law, or things done by an EU entity or the EU, so far as it is relevant to any matter before the court.
31 Finally, the amendments would also make clear that clause 6(2) is subject to the rest of clause 6. In particular, this means that courts below the Supreme Court or High Court of Justiciary would continue to be bound by retained EU case law, even if a new decision on the same subject has been taken by the CJEU after the UK’s departure from the EU. Those courts would be able to have regard to anything done by the CJEU etc. after exit, but not to the extent that they are no longer bound by retained EU case law.
Lords Amendments 9
32 Lords Amendment 9 would make provision about the status of retained EU law. It would clarify that EU-derived domestic legislation which is saved by clause 2 will continue as legislation of the same type as it was before exit day.
33 It would restrict the ways in which retained EU law brought in by clause 3 and 4 can be amended by primary and subordinate legislation. In summary, it would broadly provide that such law can be amended by:
a. Acts or other primary legislation (such as a Welsh Act);
b. powers to make subordinate legislation which explicitly provide that they may amend such law; and
c. powers to make subordinate legislation which may amend such law by virtue of the glosses in paragraphs 3A to 3F (existing powers) or 5A to 5C (future powers) of Schedule 8.
34 It would signpost provisions about the status of retained EU law in other provisions of the Bill. It also provides the following definitions, which would divide retained direct EU legislation brought in by clause 3 into two categories for the purposes of amendability:
a. "Retained direct minor EU legislation" would be defined as any retained direct EU legislation which is not a retained direct principal EU legislation. This would broadly cover EU Tertiary legislation and EU decisions (as defined in clause 14(1)); and
b. "Retained direct principal EU legislation" would be defined as any EU Regulation which is converted into UK law on or after exit day in accordance with clause 3 and was not EU tertiary legislation. This would broadly cover EU Regulations (which are not also EU tertiary legislation) The definition would also include any Annex to the EEA agreement which refers to or amends EU Regulations.