Last week, the draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 ("the draft Regulations") were released by the UK Government. The draft Regulations change which courts will be able to disregard 'retained EU case law' after the transition period has ended. This article discusses what retained EU case law is and the changes made by the draft Regulations.

What is retained EU case law?

Retained EU case law is a form of retained EU law, a new type of domestic law that will come into force at the end of the transition period. The European Union (Withdrawal) Act 2018 ("the 2018 Act") made provision for three different forms of retained EU law:

  • EU derived domestic legislation. For example, domestic secondary legislation implementing an EU Directive. This will continue to have effect as it did previously.
  • Direct EU legislation. For example, an EU Regulation that currently has direct effect in the UK.
  • Other directly effective EU rights that come from sources other than legislation. For example, rights that stem directly from the EU Treaties, which may have been recognised by a decision of the Court of Justice of the European Union (CJEU).

It is often said that a 'snapshot' of this law will be taken at the end of the transition period (11pm UK time on 31 December 2020). This snapshot will then become retained EU law, a category of UK law. It will be capable of being relied upon in UK courts and being amended in the same manner as other domestic law.

To assist in the interpretation of retained EU law, the 2018 Act also provides for the incorporation of 'retained EU case law'. This comprises domestic and CJEU decisions from before the end of the transition period that relate to retained EU law. Such case law will therefore remain in place, but the 2018 Act gave certain UK courts the power to depart from CJEU decisions they were previously bound by. In particular, the Supreme Court will be able to depart from CJEU case law in any case, while the High Court of Justiciary will be able to do so when hearing an appeal other than on a devolution or compatibility issue (i.e. an appeal that could not then go to the Supreme Court) or sitting on a Lord Advocate's reference. In either case the relevant court would decide whether to depart from by reference to the same principles it adopts when deciding whether to depart from its own precedents.

What changes will the draft Regulations make?

The European Union (Withdrawal Agreement) Act 2020 amended the 2018 Act to give the UK Government the power to extend the ability to depart from retained EU case law to other, lower courts and tribunals. The draft Regulations propose to use this power, and were published last week alongside the response to a consultation on extending the power.

The draft Regulations will, if made, extend the power to:

  • The Inner House of the Court of Session;
  • The High Court of Justiciary when hearing compatibility or devolution issues (which, combined with the original terms of the 2018 Act, means the High Court will now be able to disapply retained EU case law when hearing any appeal);
  • The court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983 (which consists of three Court of Session judges who hear appeals from the Sherriff Court under that Act);
  • The Lands Valuation Appeal Court;
  • The Court of Appeal in England and Wales,
  • The Court of Appeal in Northern Ireland; and
  • The Court Martial Appeal Court.

These courts (which are essentially those courts that are a level below the Supreme Court) will still be bound by retained case law where another UK judgement, which is binding on them, modifies or applies it (e.g. if the Supreme Court has already heard a case concerning the same retained case law, the Inner House will be bound by the Supreme Court's approach).

When determining whether to depart from retained case law, these courts should use the same test the Supreme Court uses when departing from its own precedent. This test is broadly stated in a House of Lords Practice Statement from 1966, which said that this should only be done "when it appears right to do so". While this may seem to leave large scope for departing, the jurisprudence of the Supreme Court and House of Lords on this test is somewhat more specific, and demonstrates a reluctance to depart other than in compelling circumstances. Precedent has been abandoned only in a small number of cases.

What will this mean in practice?

If and when brought into force, the draft Regulations will result in more courts being able to interpret retained EU law differently from how it has been interpreted by the CJEU in the past. This will give parties more scope to argue, at an earlier stage of any appeal process, that courts should set aside currently binding CJEU judgments. However, the relatively strict test that must be applied, and the fact that domestic courts are unlikely to conclude very often that a CJEU decision on a matter of EU law should not be followed, means that that will be a relatively rare occurrence. It also seems likely that, where one of these lower courts does decide to depart from CJEU caselaw, that decision would be further appealed to the Supreme Court (unless the parties were agreed that the law should change). Accordingly, while this is a very significant change in theory, it is likely to make a difference only occasionally in practice.

For more information on Brexit and how it will effect the status of EU law in the UK, please contact Charles Livingstone or your usual Brodies contact.


Andrew MacDonald

Trainee Solicitor