1 week left to respond to Consultation on Departing from Retained EU Case Law in the UK

United Kingdom

The Ministry of Justice has published a consultation on the departure from retained EU case law by UK courts and tribunals. Responses are invited to the consultation questions by 13 August 2020.

At the end of the transition period, various pieces of EU legislation will be retained in the UK law as a result of sections 2-4 of the European Union (Withdrawal) Act 2018 (“the 2018 Act”), as amended by the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”). This new category of UK law is known as retained EU law and is intended to ensure a level of legal certainty following on from the UK’s departure from the EU. Included in the body of retained EU law will be:

  • EU-derived domestic legislation (for example the Ecodesign for Energy-Related Products Regulations 2010 that implement Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products)
  • EU legislation that was directly applicable in the UK, such as EU regulations and EU decisions (for example, Regulation (EU) 2017/1369 setting a framework for energy labelling)

Section 6 of the 2018 Act (as amended) provides that UK courts and tribunals will cease to be bound by the principles or decisions laid down by the Court of Justice of the European Union (“CJEU”). However, retained EU law will be interpreted in line with retained EU case law (comprising of the principles and decisions laid down by UK courts, tribunals and the CJEU in respect of EU law before the end of the transition period). Currently, only the UK Supreme Court or the High Court of Justiciary has the power to depart from retained EU case law.

The latest consultation seeks views on the Government’s use of the power in section 6(5A) of the 2018 Act (as amended by the 2020 Act). Section 6(5A) enables the Government to:

  • designate additional courts or tribunals with the power to depart from retained EU case law;
  • specify “the extent to which, or circumstances in which,” the court or tribunal “is not to be bound by retained EU case law”;
  • set out the test which a relevant court or tribunal “must apply” in deciding whether to depart from any retained EU case law;
  • specify considerations which “are to be relevant” to the court or tribunal in coming to such decisions.

Any regulations made following the consultation will be brought into effect by 31 December 2020.

Comment

The consultation states that giving the lower courts the power to depart from retained EU case law will allow decisions to reflect the changing circumstances brought by the UK’s departure from the EU and the end of the transition period. The idea is that the law does not become “fossilised” given that fewer cases progress to the Supreme Court. On the other hand, there is a risk that if a large number of courts have the power to depart from retained EU case law, this may create a “free for all” whereby cases might be relitigated creating legal uncertainty and increasing the likelihood of diverging decisions. On balance, the Government proposes that the ability to depart from retained EU case law, in addition to the Supreme Court and the High Court of Justiciary, should be limited to the Court of Appeal and/or the High Court and their equivalents.

The consultation recognises that the power will not affect the interpretation of any law which is not retained EU law (for example the rights and obligations under the Withdrawal Agreement and the Protocol on Ireland/Northern Ireland) under which certain EU laws will continue to apply to Northern Ireland post the transition period or any UK law which gives effect to the requirements of the Withdrawal Agreement. The consultation does not seek views on how this will work in practice. The Protocol on Ireland/Northern Ireland sets out that various provisions of European Union law listed in the Annexes will apply in respect of Northern Ireland, including provisions in Annex 2 covering many product related laws such as the Ecodesign Directive and the Energy Labelling Framework Regulation noted above. In so far as these provisions apply to Northern Ireland, they will have to be dynamically interpreted in line with the EU case law but for Great Britain, the courts will have to apply retained EU case law as it stands at 11pm on 31 December 2020, and may depart from it at a later date.

Co-authored by Lucy Charatan