Retained EU law and lower courts – A Government consultation

On 2 July, the Ministry of Justice published a consultation paper. It concerns the circumstances in which UK courts and tribunals might depart from retained EU case law.

This Insight explains the consultation’s policy context and what its proposals could mean for UK courts after the Brexit transition period has ended.

EU law during transition

The UK continues to follow EU law during the transition period. UK courts and tribunals continue to follow the decisions, or “case law”, of the Court of Justice of the European Union (CJEU) until the end of 2020.

The Withdrawal Agreement makes special arrangements for CJEU case law in some areas even after transition. These topics include citizens’ rights. Those exceptions aside, however, the UK will no longer have to follow EU law or decisions of the CJEU once the transition period ends.

EU law remains relevant after transition

This does not mean EU law becomes irrelevant to the UK courts after the end of the transition period.

Much of the substance of EU law as it stands at the end of transition will stay part of domestic law. This will be known as “retained EU law”. This ensures some continuity and certainty for the UK’s statute book. Domestic legislatures and governments may then choose to diverge from EU law. In many policy areas divergence is expected, but the legal “starting point” will resemble the rules and principles of EU law.

Where does case law fit into this?

EU law does not just comprise legislative instruments, like treaties, regulations and decisions. It also includes the interpretation of those rules by judges. The CJEU’s decisions are binding on Member States to ensure that each domestic legal system applies EU law in the same way: that they share an understanding of what the rules mean.

Since retained EU law is derived from EU law, CJEU precedents are key to its interpretation. Therefore, in addition to retaining much of the substance of EU law, the EU (Withdrawal) Act 2018 also retains relevant case law of the CJEU, provided that it was handed down before the end of transition.

Giving retained EU case law a status – EU (Withdrawal) Act 2018

“Retained EU case law” needs a “status” in domestic law, much like retained EU law itself does. We need to know for which courts and tribunals CJEU decisions are binding and for which they are only persuasive authority.

The original EU (Withdrawal) Act 2018 proposed that retained EU case law should be treated as though CJEU decisions had been made by domestic ‘courts of last resort’. This almost always means the UK Supreme Court (UKSC). For some (but not all) criminal proceedings in Scotland, the court of last resort is instead the High Court of Justiciary’s appeal court.

Decisions of the UKSC are binding on courts and tribunals below it. This includes the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland, and the Inner House of the Court of Session in Scotland. Under the original arrangement, therefore, retained EU case law would be binding unless and until:

  • the UKSC decided to depart from retained EU case law; or
  • domestic legislation (whether primary or secondary) modified the retained EU law to which retained EU case law related.

A change of approach – EU (Withdrawal Agreement) Act 2020

The current Government changed policy. This was reflected in section 26 of the EU (Withdrawal Agreement) Act 2020. This confers a power to make regulations on UK Ministers toextend the “non-binding” nature of retained EU case law to other courts and tribunals. Regulations can also specify the legal test judges use when deciding whether to depart from retained EU case law.

Why the change of approach?

The original approach had the perceived advantage of legal certainty and consistency. It made it less likely UK courts would diverge from one another when interpreting retained EU law. Certainty makes it easier for individuals, businesses and others to plan their affairs. That approach also placed a greater responsibility on political actors, like Parliament and Government Ministers, to decide whether and when the UK should diverge from EU law.

The new policy reflects the Government’s view that the original approach was too inflexible.

For example, the CJEU might itself overturn one of its precedents after the transition period has ended. Under the original arrangements, a post-transition decision would not form part of retained EU case law, but the older decision would.

Even if the UK courts agreed with the CJEU that the new decision was a better interpretation of EU law, courts and tribunals below the UKSC would be bound by retained EU case law. Parties would have to litigate in at least one, and possibly even three or four, lower courts and tribunals before the UKSC could finally authorise a departure from retained EU case law. This adds cost and time for the parties involved, and its own legal uncertainty.

The consultation

The Government is now consulting on two options for making section 26 regulations.

The first option would allow additional appellate courts to depart from CJEU decisions where they considered it was “right to do so” (the UKSC’s test for departing from its own precedents) including:

  • the Court of Appeal of England and Wales;
  • the Court of Appeal of Northern Ireland;
  • the Inner House of the Court of Session and High Court of Justiciary in all its appeal court capacities in Scotland; and
  • the Court Martial Appeal Court.

The second option would go further. It would allow courts one further rung down the judicial ladder also to depart from CJEU decisions, using the same test. These additional courts, which notably include courts of first instance, are:

  • the High Court of England and Wales;
  • the High Court of Northern Ireland;
  • the Outer House of the Court of Session and the High Court of Justiciary as a first instance court in Scotland; and
  • the Sheriff Appeal Court in Scotland.

The consultation invites views on both proposals, and on a range of closely related matters. The deadline for responses is 13 August 2020.

Further reading

Ministry of Justice, Retained EU Case Law: Consultation on the departure from retained EU case law by UK courts and tribunals

House of Commons Library, Constitutional implications of the Withdrawal Agreement legislation, CBP 8805, 20 February 2020, especially Section 8

House of Commons Library, The status of “retained EU law”, CBP 8375, 30 July 2019


About the author: Graeme Cowie is a researcher at the House of Commons Library, specialising in Brexit and the constitution.

Photo: British and European flags in front of the Berlaymont building by Lieven Creemers.  Copyright: European Union, 2016 / image cropped.  Source: EC – Audiovisual Service.