Recent Developments on the Status of EU Derived Case Law – UK Constitutional Law Association
Brexit has been and continues to be a complicated process to understand, especially for continental lawyers. Nevertheless, it is interesting to try to study its dynamics and how, if at all, the law implemented within more than four decades of being part of the European Union will continue to affect the British legal system.
In particular, in this post we will focus on the status of EU derived case law, since there have been many novelties concerning this topic in the latest reforms.
Retained Case Law Under the EU Withdrawal Act 2018, as Amended by the EU Withdrawal Agreement Act 2020
Under the EU Withdrawal Act 2018, as amended by the EU Withdrawal Agreement Act 2020, section 6(3), it is stated that “any question as to the validity, meaning or effect of any retained EU law is to be decided, so far that law is unmodified” on or after 31 December 2020 (the end of the transition period), “in accordance with any retained case law and any retained general principles of EU law”. Thus, in pursuing the principle of legal certainty in the Brexit process, the binding force of the case law coming from the Court of Justice was maintained, provided that it was handed down before the end of the transition period (as prescribed by article 89 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community).
There is an exception to this rule, found in section 6(4): the UK Supreme Court, but also the High Court of Justiciary in Scotland (as the final criminal court of appeal in Scotland) are not bound by any retained EU case law, identified, at section 6(7) as “any principle laid down by, and any decision of, the European Court, as they have effect in EU law immediately before” 31 December 2020.
Basically, these two courts must apply the same test they follow when deciding whether to depart from their own case law. The test employed by the UKSC is the one given in a 1966 practice statement by the House of Lords (Practice Statement [1966] All ER 77), which enables the UK Supreme Court to overrule its own judgments “when it appears right to do so”. Similarly, the High Court of Justiciary can depart from its own decisions when the interest of justice requires it, although it has not adopted a set test that has to be met to overturn earlier decisions.
To complete this framework, section 6(4) provides that “a relevant court or relevant tribunal is not bound by any retained EU case law so far as is provided for by regulations”. Said “relevant courts” are listed in the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020, and are: the Court Martial Appeal Court; the Court of Appeal in England and Wales; the Inner House of the Court of Session; the High Court of Justiciary when hearing a compatibility or devolution issue; the court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983(3); the Lands Valuation Appeal Court, and the Court of Appeal in Northern Ireland (regulation n.3).
In the light of what precedes, I respectfully observe that, under the Act – and in contrast to what is stated in Prof. Feldman’s post titled Departing from Retained EU Case law – the designated “relevant courts” are not free to depart from judgments on retained EU law made by domestic courts on or before 31 December 2020. In fact, although section 6(7) states that “retained case law” means both “retained EU case law” (thus coming from the European Court) and “retained domestic case law” (coming from national courts and applying EU law), section 6(4) only refers to “retained EU case law”. This means that the “relevant courts” could only depart from retained case law coming from the European Court and not from an otherwise binding precedent coming from a higher domestic court and applying retained EU law. Therefore, a court is still bound by retained domestic case law emanating from a court whose judgments normally bind it.
The changes introduced by the Retained EU Law (Revocation and Reform) Act 2023
The framework described above is going to be amended by the Retained EU Law (Revocation and Reform) Act 2023, which has the purpose of removing the supremacy of EU law and general principles of EU law from the law in the United Kingdom. The Act also aims to make it easier for domestic courts to depart form EU derived case law. Section 5 of the Act prescribes that after the end of 2023 “retained case law” will become “assimilated case law” (composed of “assimilated EU case law” and “assimilated domestic case law”). This modification intends to eliminate any reference to the European source of said case law, although in section 6 of the Act, amending section 6 of the EUWA, there are still some references to “retained EU case law”, while, in accordance with what stated in section 5 of the same Act, it should have been called “assimilated EU case law”. Anyway, it must be underlined that section 6 of the REUL Revocation and Reform Act is still not in force under section 22(3) of the same Act, which requires regulations by a Minister of the Crown to appoint the date on which it will come into force. If and when the provision enters into force, however, some important changes to the rules for departing from EU derived case law will be introduced.
First of all, section 6 introduces a new test for the Supreme Court and other “higher courts” (the High Court of Justiciary when sitting as a court of appeal and the previous “relevant courts”, which are now defined “relevant appeal courts”) to depart from retained EU case law (coming from the European Court of Justice, as explained above). In fact, it is maintained that the Supreme Court and the High Court of Justiciary are not bound by any retained EU case law, while the “relevant appeal courts” (previously the “relevant courts”) are “not bound by any retained EU case law (except so far as there is relevant domestic case law which modifies or applies the retained EU case law and is binding on the relevant appeal court)”. In deciding whether to depart from any retained EU case law, in accordance with section 6(3), all of the mentioned courts must, among other things, “have regard to…the fact that decisions of a foreign court are not (unless otherwise provided) binding”, “ any changes of circumstances which are relevant to the retained EU case law”, and “the extent to which the retained EU case law restricts the proper development of domestic law”.
It must be noted that within this test, domestic courts will have to consider EU case law issued before 31 December 2020 as coming from a “foreign court”, without acknowledging the peculiarity of the relationship between the EU and the UK until the Brexit. This is also demonstrated by the fact that many judicial principles deriving from EU have been absorbed by the domestic legal system, so that, in some cases, it might be quite difficult to distinguish between “foreign” and “domestic” law.
Section 6(4) also introduces a new test for a “higher court” (the Supreme Court, the High Court of Justiciary and “a relevant appeal court”) to depart from its own retained domestic case law “if it considers it right to do so, having regard (among other things) to”: “the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart”, “any changes of circumstances which are relevant to the retained domestic case law” and “the extent to which the retained domestic case law restricts the proper development of domestic law”.
Therefore, the designated courts can depart from their own case law, but never from case law coming from a higher court which binds them. Nevertheless, section 6(8) of the 2023 Act introduces a new mechanism for lower courts to make a reference to a higher court on binding retained case law (which means both retained EU and retained domestic case law) when the point of law referred is relevant to the proceedings and of general public importance. The reference must be made to the Supreme Court if it concerns retained case law from the Supreme Court; otherwise the reference must be made to the appropriate appeal court. Once the higher court has accepted the reference, it must decide the points of law concerned, and the referring court must apply that decision so far as relevant to the proceedings before it. Under the reform, even the Attorney General and other Law Officers in the UK (listed in the proposed sections 6B and 6C) can make a reference on retained case law when the proceedings have concluded; the outcome of the reference will not affect the proceedings themselves, but it can be assumed that it will be binding for future cases, following the usual rules of binding precedents. These Law Officers can also intervene in the proceedings where a higher court is considering departing from retained case law.
Conclusions
The chaotic sequence of laws modifying the status of EU derived case law, and of EU law more generally, can generate much confusion among practitioners and legal scholars from the UK and other jurisdictions. Until now, courts have proven to be faithful to retained EU case law. In Tunein Inc v. Warner Music UK Ltd and Sony Music Entertainment UK Ltd [2021] EWCA Civ 44, one of the reasons why Lord Justice Arnold declined to depart from retained EU law was that the law had remained unchanged, and it was up to the Parliament whether to change it. Once it becomes effective, the latest reform will encourage judges to depart from EU derived precedents. It is questionable, however, whether this reform was really needed at this stage, because, as has been observed by Professor Birkinshaw in a recent paper titled Reining in the Courts and Removing the Legacy of EU Law: “EU sovereignty would have been attenuated in any case with the passage of time”.
In addition, it is also worth mentioning that, since the overruling under the 1966 Practice Statement can be problematic for the principle of legal certainty, the Supreme Court has been very cautious in exercising it (Lord Reed, in a recent lecture on this topic, stressed that the Supreme Court has not used this power very often in order not to undermine “the role of precedent and the certainty which it promotes”). Therefore, the expansion of this power to other courts and the introduction of new tests to depart from binding case law may have very little practical effect, albeit it is still to be seen how and to what extent courts (and law officers in some cases) will use the tools introduced in the latest reform, and what will be the consequences for the legal systems of the United Kingdom.
I would like to thank Professor Michael Gordon, Dr Paul Scott, and Professor Ermanno Calzolaio for their insightful comments on the first draft of this post.
Katia De Blasio is a PhD Candidate at the University of Macerata, Italy, and passed the Italian bar exam in 2022.
(Suggested citation: K. De Blasio, ‘Recent Developments on the Status of EU Derived Case Law’, U.K. Const. L. Blog (20th November 2023) (available at https://ukconstitutionallaw.org/))