Q&As

What is retained case law and to what extent are UK courts and tribunals bound/able to follow it?

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Published on LexisPSL on 22/12/2020

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • What is retained case law and to what extent are UK courts and tribunals bound/able to follow it?

Retained case law is defined in section 6(7) of the European Union (Withdrawal) Act 2018 (EU(W)A 2018). It encompasses both domestic case law and the case law of the Court of Justice of the European Union (CJEU), as they have effect immediately before the end of the Brexit transition/implementation period (referred to in UK law as IP completion day).

Case law only falls within the definition of retained case law insofar as it relates to retained EU law. Retained EU law includes EU-derived domestic legislation (retained under EU(W)A 2018, s 2), direct EU legislation (retained law under EU(W)A 2018, s 3) or other rights etc (retained under EU(W)A 2018, s 4). Case law which relates to areas excluded by EU(W)A 2018, such as

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