On 15 October 2020, the UK Ministry of Justice published its response to the consultation on the departure from retained EU case law by UK courts and tribunals (accessible here). The consultation, as reported in our article here, asked for views on the use of the powers in the European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal Agreement) Act 2020). In particular, the consultation asked:
- in addition to the UK Supreme Court and High Court of Justiciary in Scotland, which courts ought to be able to depart from retained EU case law and the extent to which the court is not bound by retained EU case law;
- the test that the courts should apply when deciding whether to depart from retained EU case law;
- the considerations that the courts ought to take into account in coming to such decisions; and
- the operation of precedent in these circumstances.
In total, the Government received 75 responses from across the legal services sector, businesses, the judiciary and members of the public, as well as other key partners and stakeholders.
The Government decided that it is appropriate to extend the power to depart from retained EU case law, despite 56% of respondents indicating that they would not be in favour of such an extension. The Government reasoned that the extension of powers would reduce the operational pressures on the Supreme Court. It would also ensure that retained EU case law does not become “fossilised” and is able to develop more swiftly than if only the Supreme Court had the power to depart from it. The Government noted that many of the respondents had objected to the existence of the power to depart from retained EU case law itself and that this issue had already been determined by Parliament – instead, the consultation concerned the question of whether more courts ought to be able to depart from retained EU case law.
In terms of which courts the power to depart should be extended to, the Government acknowledged that the objective of ensuring that retained EU case law could rapidly evolve might be met if the power was extended to lower courts, such as the High Court. However, the Government considered that this benefit would be outweighed by the corresponding risks of legal uncertainty and increased likelihood of divergence of the application of the law. As a result, the Government intends to extend the power to depart from retained EU case law to the Court of Appeal of England and Wales and equivalent courts.
The Government then went on to consider the issue of operation of precedent. This potentially posed a complex issue, as decisions of the CJEU are frequently interpreted and applied by a UK court (e.g. the Court of Appeal), the decision of which is then binding on lower courts (e.g. the High Court). Granting the lower court the power to depart from binding precedent from a UK court (insofar as it related to retained EU case law) could give rise to uncertainty and confusion. As a result, the Government determined that it is “not desirable for courts with the power to depart from retained EU case law to be able also to depart from retained domestic case law and the development of such law should be governed by the existing rules of precedent”.
Considering the test to be applied, the Government concluded that the additional courts should apply the same test as used by the Supreme Court – namely, whether it is right to do so. The Government considered that this test is sufficiently well-established, being supported by a wealth of case law, and to apply a new test would increase legal uncertainty until such test is settled. In terms of whether any factors should be taken into consideration when applying the test, the Government opined that any codification of factors would cause further uncertainty. Moreover, the Government noted that the existing Supreme Court test allows for flexibility and has remained fit for purpose since 1966 without need for modification. As a result, the Government will not be providing a list of considerations that the courts must take into account when determining whether to depart from retained EU case law.
The Government’s decision to extend the power to depart from retained EU case law to the Court of Appeal and equivalent courts may be met by some disappointment in the legal sector, if the responses to the consultation are anything to go by. However, these particular stakeholders should take comfort in the fact that the Government intends for UK courts to remain bound by UK precedent (i.e. a domestic judgment that interprets a CJEU decision cannot be disturbed unless the UK court in question would normally be permitted to do so). Whilst the Government’s response may provide clarity in terms of which courts will be able to exercise the power and the test to apply, questions remain as to how the courts will apply the test in practice. Further, it is entirely conceivable that the decisions of the Court of Appeal relating to the departure from retained EU case law will themselves give rise to a greater number of appeals to the Supreme Court, thereby resulting in a bottleneck scenario that the extension of these powers had set out to avoid.
The Government has now introduced to Parliament a draft statutory instrument to make Regulations that give effect to the Government’s policy on the departure from retained EU law by UK courts (the draft of which can be found here). If Parliament approves the statutory instrument, the Regulations will come into effect at the end of the Transition Period.
 The equivalent courts include: the Court of Appeal of Northern Ireland; the High Court of Justiciary in Scotland when sitting as a court of appeal in relation to a compatibility issue or a devolution issue; the Inner House of the Court of Session; the Lands Valuation Appeal Court and the Registration Appeal Court.