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Departure from retained EU case law by UK courts and tribunals – Law Society response

We’ve responded to the Ministry of Justice’s (MoJ) consultation on:

  • which courts and tribunals should be able to depart from retained EU case law
  • the extent to which they may do so
  • the test they must apply
  • considerations which ‘are to be relevant’ to the court or tribunal in coming to such decisions

Key proposals

Which courts and tribunals should be able to depart from retained EU case law

Section 6 of the European Union (Withdrawal) 2018 Act, as amended by section 26(1) of the 2020 Act, provides for the introduction of new ministerial powers to set out which courts and tribunals may depart from retained EU case law.

The government has set out two primary options on which courts or tribunals should have the power to depart from retained EU case law.

  • Option one is to extend the ability to depart from retained EU case law to the Court of Appeal in England and Wales, and equivalent courts in the other UK jurisdictions
  • Option two is to extend the ability to depart from retained EU case law to the High Court of Justice of England and Wales and its closest equivalents in the other UK jurisdictions, in addition to the Court of Appeal and equivalent courts

The extent of the power to depart

The government has proposed that the same test is applied by the relevant courts and tribunals to which this power is extended to promote consistency of approach and legal certainty across the different jurisdictions in the UK.

The test for departing from retained EU case law

The government’s preferred view is that any additional court or tribunal should apply the test the UK Supreme Court applies in deciding whether to depart from its own case law.

The UK Supreme Court test in deciding whether to depart from its own case law is set out in the House of Lords Practice Statement of 26 July 1966, 13 namely “whether it appears right to do so”.

The government does not intend to specify a list of considerations that all courts and tribunals with the power to depart should take into account when making such determinations.

Our views

Our view is that the power to depart from retained case law should not be extended to UK courts and tribunals beyond the Supreme Court.

The Supreme Court is best placed to consider the full implications of any such departures.

Any change from this position constitutes a major shift in the administration of justice. This could result in a lack of legal certainty through the emergence of novel judgments that are either not binding on other courts or are inconsistent with precedent.

Precedent provides some degree of certainty upon which individuals can rely in the conduct of their affairs.

If the power to depart is granted more widely, it should be restricted to option one (the Court of Appeal and its equivalents) to help to mitigate the erosion of precedent.

We raised concerns about option two, which would extend the power to the High Court and equivalent courts and tribunals, as it risks creating conflicting precedents within the judicial system and considerable legal uncertainty.

The test that the Supreme Court uses to depart from its own rulings has certain benefits in that the test is uncodified and flexible, the bar is necessarily high, and it will have the value of reinforcing legal clarity and certainty.

This clarity, coupled with the quality of the judges who apply the case law and the English language, has traditionally been seen as a strength when making arguments on the UK as the jurisdiction of choice.

However, we envisage the development of the test to depart from retained EU case law may be too wide and additional factors should be for consideration by the courts.

Our preference is for the courts to outline these factors.

The Supreme Court could establish the ‘schedule of considerations’ for this purpose in one of its first judgments, taking account of both existing case law and the need to consider potential departures in this field holistically.

What the proposals could mean for solicitors

The proposals on the departure for EU retained law could see a significant shift in the administration of justice in England and Wales and lead to a lack of legal certainty.

Granting the power to depart to lower courts is likely to encourage litigation by parties who hope to overturn an earlier judgment which relied upon EU case law, and subsequently increase the volume of cases.

This will inevitably put additional pressure on the courts, which are already facing a significant backlog caused by the COVID-19 pandemic.

Conversely, restricting the power to depart to the highest courts is likely to help prevent frivolous claims.

The emergence of various judicial interpretations to case law, which has been noted to be a probable risk should the power to depart be widely given, would likely lead to an increase in the volume of cases, due to an increased number of appeals in order to address these inconsistencies. This would be the case both within and across the UK’s jurisdictions.

It’s reasonable to expect those areas of law which have been shaped more by EU case law and the EU courts to be subject to greater impact.

In practice, this would suggest a greater impact in the fields of:

  • competition law
  • state aid
  • trade
  • agriculture
  • employment
  • intellectual property

Next steps

The consultation closes on 13 August 2020.

We’ll be raising our views on the consultation directly with the Ministry of Justice.

View the consultation on the Ministry of Justice’s website