The Ministry of Justice (MoJ) is to allow the Court of Appeal as well as the Supreme Court to depart from European Union case law from next year, despite the opposition of a majority of respondents to a consultation.
There were strong objections from the likes of the Law Society and Bar Council, but some of the UK’s most senior judges backed the move.
Under the European Union (Withdrawal) Act 2018, the government decided that to maintain continuity, EU case law already in the system should be retained, effectively becoming domestic law.
Only the Supreme Court and Court of High Court of Justiciary in Scotland were granted the power to depart from retained EU case law following the end of the transition period on 31 December 2020.
The European Union (Withdrawal Agreement) Act 2020, passed after last year’s election, amended the 2018 Act to allow ministers to make regulations extending the power to more courts.
The courts involved must be specified, along with the test they apply in deciding whether to depart and any relevant considerations when making their decision.
Some 56% of the 75 respondents to a consultation issued in July disagreed with extending it to other courts and only 27% agreed, with the opponents’ predominant reason being the risk to legal certainty.
The MoJ’s consultation response document said: “They considered that the impact of such legal uncertainty would result in: the re-litigation of well-established legal principles; a divergence in legal approaches across the UK on similar issues; and an incoherent legal framework with adverse impacts in key areas such as tax, employment, environment and equalities.
“They concluded that the cumulative effect of this uncertainty would negatively impact businesses and the UK’s international reputation as a reputable forum in which to settle disputes.
“Many of those who did not support the extension of the power expressed concern about the principle of reliance on the courts to consider diverging from retained EU case law – arguing that this is a matter for Parliament to legislate upon.”
However, three of the five statutory judicial consultees – the president of the Supreme Court, the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session – supported an extension; the Lord Chief Justice of England and Wales and the Senior President of Tribunals made no comment.
The MoJ said some of the objection was in principle opposition to the courts being able to reach such a decision at all – “a principle that was not subject to this consultation”.
It went on: “The government has also considered that a number of respondents, and particularly the statutory consultees, identified positive benefits from the extension of this power, in particular for the UK Supreme Court in terms of its ability to hear such cases in a more timely manner, and the assistance that prior consideration of departure from retained EU case law at the Court of Appeal level would provide”
If the power were not extended to additional courts, the MoJ said, the Supreme Court could become “a bottleneck to the timely resolution of such cases due to an increase in demand”, which could in itself result in legal uncertainty
There was no support for extending the power beyond the Court of Appeal and its counterparts in Scotland and Northern Ireland.
The MoJ said the move would help achieve “our aim of enabling retained EU case law to evolve more quickly than otherwise might have been achieved”.
The Court of Appeal will apply the same test adopted by the Supreme Court in deciding whether to depart from its own case law.
“Given the nature of that test, the government is not minded to specify any additional factors for the courts to consider.”
On precedent, the MoJ said it was “not desirable” for courts with the power to depart from retained EU law to be able also to depart from retained domestic case law relating to retained EU law. “Development of such law should be governed by the existing rules of precedent.”
The MoJ laid a statutory instrument implementing the change last week. If approved by both Houses of Parliament, it will come into effect at the end of the transition period.