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The government has published its response to the Ministry of Justice (MoJ) consultation on proposed changes to the rules governing the departure from retained EU case law by UK courts and tribunals after IP completion day. The consultation outlined government proposals for exercising powers introduced into the European Union (Withdrawal) Act 2018 (EU(W)A 2018) by the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020), to introduce regulations designating additional courts and tribunals with the power to depart from retained EU case law. Under the original provisions, only the UK Supreme Court (and in some cases the High Court of Justiciary in Scotland) have such powers. Despite concern within the legal services sector, legal academics, businesses and other organisations (representing over 50% of the respondents), the government is proceeding with regulations extending the powers to depart from retained EU case law to the Court of Appeal and its equivalents. The government’s aim is to allow retained EU case law to evolve at a faster rate, without overburdening the Supreme Court and High Court of Justiciary. To this end, a draft Brexit SI was laid in Parliament as the consultation outcome was issued. Professor Adam Cygan, of the University of Leicester, and Sally Shorthose, partner at Bird & Bird, comment on the outcome.
The power to introduce regulations under EU(W)A 2018, s 6(5A) expires on 31 December 2020. Such regulations must be made under the draft affirmative resolution procedure by IP completion day.
Draft regulations were laid in Parliament on 15 October 2020, under EU(W)A 2018, Sch 8 para 9A, to coincide with the consultation response. See: Draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020. The draft regulations introduce additional provisions to be read alongside EU(W)A 2018, s 6 in accordance with EU(W)A 2018, s 6(4)(ba).
The draft regulations provide that the relevant courts (ie the Court of Appeal and its equivalents) will not be bound by retained EU case law, except to the extent the retained EU case law in question is modified or applied by ‘post-transition case law’, ie principles or decisions of another court or tribunal which are binding on the relevant courts, as they have effect on or after IP completion day.
The draft regulations set out the test for the relevant courts to apply in deciding to depart from retained EU case law in similar terms to EU(W)A 2018, s 6, ie that in deciding whether to depart from retained EU case law, a relevant court must apply the same test as the Supreme Court would apply in deciding whether to depart from its own case law.
The regulations are subject to approval by a resolution of both Houses of Parliament in accordance with the draft affirmative procedure. For further reading, see: European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020, LNB News 15/10/2020 76.
• MoJ Consultation: Departure from retained EU case law by UK courts and tribunals
• Draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020
For further detail, see: LNB News 15/10/2020 101.
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