This post looks at Clause 6 of the European Union (Withdrawal) Bill - Interpretation of Retained EU law. Explanatory Notes are available - HERE. Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day and Retention of Existing EU Law.
Definitions in Clause 6:
It is not possible to even begin to understand the complexity of Clause 6 without some understanding of the convoluted definitions set out in Clause 6(7). The terms defined relate to "Retained" law and are - 'retained case law', 'retained domestic case law', 'retained EU case law', 'retained EU law' and 'retained general principles of EU law'. Here is just one of the definitions:
Schedule 1 para. 2 says that - "No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case).
One key general principle of EU law is the doctrine that EU law is supreme. This doctrine stems from European Court of Justice case law in the 1960s - Van Gend en Loos 1963 and Flaminio Costa v ENEL 1964. However, that doctrine will NOT be a 'retained general principle of EU law' because it is specifically excluded by section 5(1) - "The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day." (Note - The principle will continue to apply to pre exit day enactments or rules of law).
What are the General Principles of EU Law?
after exit day by the European Court, and (b) cannot refer any matter to the European Court on or after exit day.
Deals with Retained EU Law - defined by Clause 6(7) as - "anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time)
Clause 6(4) is an immediate qualification of Clause 6(3) ...
The test is discussed - with links to relevant cases - in the judgment of Lord Hope at  UKSC 28 paras 24 and 25.
A] Complexity is added to the law because the definitions of the various types of "retained" law are difficult to understand. Furthermore, the application of the various clauses to particular cases will present considerable difficulties for both lawyers (adding to litigation costs) and the courts. As Paul Daly commented on his Administrative Law Matters blog (HERE) - "Clauses 1-6 form a swamp of definitions, rules and standards designed to avoid chaos by ensuring that EU law remains enforceable in the immediate aftermath of Brexit. Even seasoned lawyers are not going to enjoy navigating these provisions."
B] Lord Neuberger, the outgoing president of the UK Supreme Court, made an extraordinary intervention over the Government’s Brexit plans earlier this week. In an interview with the BBC, he said that - "If [the Government] doesn't express clearly what the judges should do about decisions of the European Court of Justice after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.”
It would be “unfair”, he said, “to blame judges for making the law when Parliament has failed to do so”. The judiciary would “hope and expect Parliament to spell out how the judges would approach that sort of issue after Brexit, and to spell it out in a statute".
Clause 6(2) appears to be the problem - "A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so."
If the judges were to choose to follow a post Exit Day decision of the CJEU then they might end up displeasing some politicians. Conversely, if the judges were to decide not to apply such a decision of the CJEU then there could be protests from those who consider that they have got things wrong!
Whether there is an alternative formulation to better assist judges is the subject of an interesting article by Raphael Hogarth published by the Institute for Government - How to answer Lord Neuberger's call for clarity on the ECJ
Hogarth points out that "Some experts believe the clearest instruction would be to tell the courts they must regard ECJ decisions as persuasive. That is because ‘persuasive authority’ is a recognised part of the grammar of precedent."
It may be an interesting debate as to the real difference between saying "treat decisions as persuasive" as opposed to telling the courts that they "need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if ... appropriate to do so." If presented with a post exit day decision of the CJEU the judges would naturally consider whether to have regard to it and not simply reject it out of hand. They would require sound reasons for any decision they make about whether or not to "have regard to" the decision and, if so, what they do about it.
It seems likely that Clause 6(2) will be the subject of intense debate in Parliament and a different formulation may emerge. For my part, I recognise the concern expressed by Lord Neuberger and we have already seen the judges castigated in a piece of appalling journalism as "Enemies of the People."
I will add links below as and when they become available.
Government Fact Sheets - Information about the Repeal Bill
Professor Mark Elliott - The EU (Withdrawal) Bill: Initial Thoughts
UCL - The Constitution Unit - Jack Simson Caird - The EU (Withdrawal) Bill: constitutional change and legal continuity - 18th July 2017.