On 25 November 2020, the House of Lords is scheduled to debate the draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (the 2020 regulations). These regulations were laid under the draft affirmative procedure. This means that both Houses of Parliament must approve them before they can be brought into force.

What is retained EU case law?

The European Union (Withdrawal) Act 2018 will save and convert directly applicable EU law and EU-derived domestic legislation at the end of the transition period. This means that it will continue to have effect in the UK after 31 December 2020. This new category of domestic legislation will be known as ‘retained EU law’.

Retained EU case law refers to the principles laid down by the Court of Justice of the European Union, prior to the end of the transition period, that relate to any EU law which is retained in UK law. The 2018 act requires that after the end of the transition period, retained EU law should generally be interpreted in line with retained EU case law. However, the act gave the UK Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law after the transition period.

Section 6(5A) of the 2018 act, as amended by the European Union (Withdrawal Agreement) Act 2020, provides the Government with powers to give additional courts and tribunals the freedom to depart from retained EU case law. Section 6(5A) also permits the Government to determine the test that these courts should apply when departing from, and the extent to which they are bound by, EU case law. The 2020 regulations have been introduced using the powers provided in section 6(5A) of the 2018 act.

What would the regulations do?

The 2020 regulations would provide the following courts with the power to depart from retained EU case law after the end of the transition period (11pm on 31 December 2020):

  • Court of Appeal of England and Wales;
  • Court Martial Appeal Court;
  • Court of Appeal of Northern Ireland;
  • High Court of Justiciary in Scotland when sitting as a court of appeal in relation to a compatibility issue or a devolution issue;
  • Inner House of the Court of Session in Scotland;
  • Lands Valuation Appeal Court in Scotland; and
  • Registration Appeal Court in Scotland.

Currently, the 2018 act enables only the UK Supreme Court and the High Court of Justiciary in Scotland (as the final criminal court of appeal in Scotland in circumstances where there is no route of appeal to the UK Supreme Court) to use this power after the end of the transition period. This was provided for by section 6(4) of the European Union (Withdrawal) Act 2018 (the 2018 act).

The 2020 regulations would also set out the test which must be applied by the courts when deciding whether to depart from retained EU case law. This will be the same test that is applied by the UK Supreme Court when deciding whether to depart from its own case law, namely whether it appears right to do so. The 2020 regulations will not change the doctrine of precedent. This means that the courts will still be bound by a decision made in another court which would normally bind them on whether or not to depart from retained EU case law.

If both Houses approve the 2020 regulations, they would come into force at the end of the transition period.

Why are the regulations being introduced?

The 2020 regulations would ensure that relevant UK courts are not bound by an CJEU interpretation of EU case law. The draft explanatory memorandum states that the 2020 regulations will assist with the UK’s departure from retained EU case law and mitigate operational impacts on the UK Supreme Court and High Court of Justiciary in Scotland:

Extending the power to the limited list of additional courts specified in this instrument, will help achieve our aim of appropriate and timely departure from retained EU case law by allowing EU case law to evolve more quickly than otherwise might have been achieved. Such a step would also help mitigate the operational impacts on the UK Supreme Court and High Court of Justiciary in Scotland which would arise if the power were reserved solely to those courts. There are also additional benefits to the UK Supreme Court in being assisted by prior judicial dialogue on these complex issues from the Court of Appeal or the relevant appellate court in Scotland or Northern Ireland.

By restricting this power to the highest appeal courts, we will also minimise the risk of adverse impacts which may arise out of any legal uncertainty resulting from additional litigation being brought, and the risk of divergence of approach between courts across the UK.

The Government believes that the regulations will ensure a balance is kept between enabling case law in the UK to evolve, whilst maintaining legal certainty and clarity.

Prior to the publication of the 2020 regulations, the Government launched a consultation on the departure from retained EU case law in July 2020. Following the consultation, the Government published a report of the consultation outcome on 15 October 2020, the same day that the 2020 regulations were laid in both Houses.

What reaction did the consultation receive?

Of the 75 consultation responses that were submitted, the Government said that 56% of respondents were not in favour of extending the powers to depart from EU case law to courts and tribunals beyond the UK Supreme Court and High Court of Justiciary in Scotland. Those citing opposition included organisations in the legal services sector, academics and trade unions.

The Law Society of England and Wales was one organisation that expressed concern. It believed that the power to depart from retained EU case law should not be extended to courts beyond the Supreme Court, as any wider remit may see novel judgements emerge and consequently lead to legal uncertainty. It also argued that extending these powers could encourage litigation, leading to an increase in the volume of cases and number of frivolous claims made by parties hoping to overturn an earlier judgement which may have relied upon EU case law. The Law Society of Scotland also shared the view that the power should not be extended beyond the Supreme Court.

The chair of the Chartered Institute of Patent Attorneys (CIPA) litigation committee, Matthew Critten, submitted a response on behalf of the CIPA and the Chartered Institute of Trade Mark Attorneys. Mr Critten said that expanding the power to the Court of Appeal and equivalent courts could see an increase in the number of intellectual property infringement cases being brought. This is because, Mr Critten states, EU case law underpins the legal reasoning in cases across several areas of intellectual property law.

In response to concerns raised by respondents, the Government said that a balance needed to be struck between the risk of creating legal uncertainty and the risk of “fossilisation” that could occur if UK law is not able to evolve to reflect the UK’s changed status following its departure from the EU.

In contrast, the Faculty of Advocates was in favour of the power being extended to the Court of Appeal and equivalents. However, it did not accept the suggestion by the Government that, without this extension, the law could become “fossilised”.

There were three responses submitted by the judiciary. Each response supported the extension of powers to the Court of Appeal in England and Wales and equivalent courts in the other UK jurisdictions. Summarising the judiciary’s reasoning for supporting this proposal, the Government said this was because:

[…] of adverse operational impacts in retaining the power to depart with the UK Supreme Court and the High Court of Justiciary in Scotland which would result in an unacceptable backlog of appeals: particularly in the area of employment law where significant areas, such as working time and discrimination, are affected by EU case law.

What parliamentary scrutiny has taken place?

On 27 October 2020, the House of Lords Secondary Legislation Scrutiny Committee considered the draft instrument and noted it as an instrument of interest. On 4 November 2020, the Joint Committee on Statutory Instruments confirmed that the 2020 regulations were not required to be reported to both Houses.

A House of Commons Delegated Legislation Committee debated the regulations on 17 November 2020. Concerns were raised by the Shadow Minister for Justice, Alex Cunningham, about feedback the Government had received during consultation. Mr Cunningham referred to the 56% of respondents who had not agreed that the power to depart from retained EU case law should be extended beyond the UK Supreme Court. He also highlighted the 37% of respondents who thought that extending the power would introduce legal uncertainty. Mr Cunningham asked the Government “what is the point of holding a consultation just to ignore the very clear message of those who have responded?”. In response, Alex Chalk, the Parliamentary Under-Secretary for Justice, said:

The hon. Gentleman referred to the responses to the consultation but did not advert to the fact that a number of those who responded said that they did not want to have any opportunity at all to depart from EU retained case law. We think that would not only strike the wrong balance but would hide-bound British justice in a way that would not serve the interests of anyone in society. Plainly, there must be the opportunity for the courts to depart, the only question is which seniority of court should be able to do so.

The regulations were deemed considered by the committee on division by 8 to 2. A motion to approve the regulations in the House of Commons was moved on 18 November 2020. Following a challenge, a deferred division will be held in the House of Commons on 25 November 2020.

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Cover image by Pete Linforth on Pixabay.