The Law Society has warned of “legal havoc” if the High Court and Court of Appeal, as well as the Supreme Court, are allowed to depart from EU case law after the Brexit transition period.
The Bar Council agreed that only the Supreme Court should have the power to depart, and it would be “damaging to the reputation” of the UK and to “legal certainty” for it to be extended to other courts.
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 at the end of the transition period on 31 December 2020.
However, following last December’s election, the European Union (Withdrawal Agreement) Act 2020 amended the 2018 Act to allow ministers to make regulations extending the power to more courts.
In a consultation last month, the Ministry of Justice proposed bringing either the High Court and Court of Appeal, or just the Court of Appeal, within this (and their UK equivalents).
In its response, the Law Society argued that the power should be confined to the Supreme Court to avoid a “radical change within the administration of UK justice” resulting in “unforeseen consequences and undesired outcomes”.
Extending the power to other courts would “result in a lack of legal certainty, through the emergence of novel judgments which are either not binding on other courts or which are inconsistent with precedent”.
The society went on: “This would be most evident in the case the High Court was able to depart from retained EU case law, given the decision of one High Court judge does not bind another but it is also possible in the case of appellate courts from different jurisdictions.
“It is foreseeable that inconsistencies would consequently emerge, and it would take an appeal to a higher court to provide resolution. Given that many parties often settle their disputes before appeal, it is possible the period of uncertainty could last for some considerable time.
“It is also possible that lower courts, by departing from case law, may throw the status of previous judgments into question, even those given by more senior courts.”
The society said the uncertainty would not only impact individual parties, but also the broader legal industry and ultimately the country.
Some decisions of the Court of Justice of the European Union (CJEU) carried “huge legal weight”, and if courts could disapply them the UK legal system could end up with “a range of interpretations”, creating uncertainty which “could take years” to resolve.
“The power for a court to go its own way must be carefully targeted if it is not to create legal havoc.”
The society said its members had also expressed concerns that a power for courts apart from the Supreme Court to depart from retained EU case law could lead to a divergence in rulings between the three UK jurisdictions and to forum shopping.
Instead, it suggested there was merit in giving UK courts a “limited power” to depart from EU case law where it had been overturned by the CJEU post-Brexit.
If it had to choose one of the options in the consultation, the society said it would prefer the power to depart to be confined to the Court of Appeal.
The Law Society and the Bar Council agreed with the MoJ that the test to be applied by courts in deciding whether to depart from its own case law should be that currently used by the Supreme Court – “whether it appears right to do so”.
The Bar Council said there should be a “strong presumption” that changes to retained EU case law were made by Parliament and not by the courts.
It warned that now would be “a particularly unfortunate time for the UK to adopt an approach to judicial interpretation that would be likely to give rise to legal uncertainty and a proliferation of costly and time-consuming appeals on points of disputed interpretation of EU retained law”.
It went on: “At a time where HMCTS is already under severe pressure due to budget cuts and the effects of Covid-19, we find it very hard to see a good case for putting further pressure on its resources in this way and, as we have already point out, since many EU law cases involve public authorities, further public resources would be involving in fighting these cases.”
The Bar Council added that it would be particularly concerned that a “proliferation of litigation and appeals on disputed points of retained EU law” would damage the international reputation of UK courts and tribunals “at a particularly sensitive time” and a “measured approach” from the Supreme Court would be its “strong preference”.