High Court could get power to depart from EU case law

Buckland: Working with judges and the legal sector

The Ministry of Justice (MoJ) is considering whether to allow the High Court as well as the Court of Appeal to depart from European Union case law from next year.

The MoJ said the government’s intention was to give courts and tribunals the flexibility to depart from retained EU case law in a “timely way” post-Brexit.

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 the Conservative Party’s general election victory last December, 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.

In a consultation launched last week, the MoJ has proposed two options. The first would extend the power to depart to just the Court of Appeal in England and Wales and equivalent courts elsewhere in the UK, and the second would also include the High Court and its UK equivalents.

The MoJ said the government’s intention was “to allow the courts and tribunals the flexibility to depart from retained EU case law, in a timely way following our departure from the EU, whilst at the same time balancing this with the need to maintain legal certainty and clarity across the UK”.

The MoJ said the government considered the risk that extending the power to a wide range of courts “could drive re-litigation and impact upon the volume and complexity” of cases being considered.

“Uncertainty in the law also runs the risk of causing damage to the UK’s reputation as a destination in which to settle disputes.

“The government therefore does not consider extending this power to all courts and tribunals as a viable solution to implementing the aims of enabling departure from retained EU case law where it is no longer in the interests of the UK, whilst at the same time maintaining legal certainty, and the UK’s international reputation as an attractive forum in which to do business and settle disputes.”

The MoJ said it had been unable to undertake a full economic assessment of the impact of the change, as it was “not possible (or appropriate)” to predict how the courts would use their new power.

“It has been suggested that there may be particular subject matters (e.g. tax) where re-litigation is more likely. To date, we have not been able to obtain evidence about any potential impacts on businesses over and above a general assumption that legal uncertainty would be unwelcome.”

The MoJ proposed that the test to be applied would be that currently used by the Supreme Court in deciding whether to depart from its own case law – “whether it appears right to do so”.

It did not intend to specify a list of considerations that courts should take into account.

Robert Buckland, the Lord Chancellor, said: “At the end of the transition period it is absolutely right that British courts have the final say on legal disputes, where appropriate.

“We will work with judges and the legal sector to decide exactly which courts should have the power to depart from retained EU case law and will set out our plan in due course.”

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