My Lords, the instrument before the Grand Committee today relates to the question of which courts should be able to depart from retained EU case law. From January, UK courts, rather than the Court of Justice of the European Union, or CJEU, will be the final arbiter of laws that govern our lives. In order to promote legal clarity and certainty in our law following our departure from the EU, Parliament has provided that EU law that we have chosen to retain is to be interpreted in line with EU case law which we have also chosen to retain.
The way in which our law is interpreted by courts and tribunals does not remain static over time. Our departure from the EU has, naturally, brought with it a change to the context in which the law is considered, and we want our courts to be able to reflect that in their decisions where appropriate. Without the ability to depart from EU case law, there is a risk that UK law will remain tied to an interpretation from the CJEU that is no longer appropriate in the UK.
For that reason, the European Union (Withdrawal) Act 2018 vested in the UK Supreme Court and, in Scotland, the High Court of Justiciary, in specified cases, the power to depart from retained EU case law, applying their own tests for deciding whether to depart from their own case law when doing so.
This instrument will extend the number of UK courts with the power to depart from retained EU case law to include courts at Court of Appeal level across the UK. In making such decisions, the test to be
applied by these courts is to be the same as that used by the UK Supreme Court in deciding whether to depart from its own case law—namely, whether it is right to do so.
The instrument will achieve our aim of enabling retained EU case law to evolve in a more timely way than otherwise might have been achieved through the status quo. It will also help to mitigate the operational impacts on the UK Supreme Court and the High Court of Justiciary that would have arisen if the power to depart from retained EU case law were reserved solely to those courts. It will further assist those courts by providing prior judicial dialogue on these complex issues from the Court of Appeal level.
I am sure that your Lordships are familiar with the terminology but, first, I shall briefly explain what I mean by retained EU case law. Retained EU case law is defined in the 2018 Act as, broadly, any principles and decisions of the CJEU as they have effect in EU law prior to the end of the transition period. This includes cases which were referred to the CJEU by the UK, as well as those referred by other member states. This is a vast and complex body of case law that spans many different areas of law.
In amending the 2018 Act through the European Union (Withdrawal Agreement) Act 2020, Parliament provided the power to make regulations to extend the list of courts which may depart from retained EU case law, to set the test to be applied by those courts and to specify any considerations that courts should take into account in coming to such decisions. This instrument extends the list of courts that can depart from retained EU case law to: the Court of Appeal of England and Wales, the Court Martial Appeal Court, the Court of Appeal of Northern Ireland, the High Court of Justiciary, when sitting as a court of Appeal in relation to a compatibility issue or a devolution issue, and the Inner House of the Court of Session, the Lands Valuation Appeal Court and the Registration Appeal Court in Scotland.
The instrument also sets out that the test to be applied by these additional courts when deciding whether to depart from retained EU case law will be the same test used by the UK Supreme Court in deciding whether to depart from its own case law. This test is well established and is capable of being easily understood and applied without any further guidance. It is anticipated that applying the same test to that used by the UK Supreme Court will foster a consistent approach across the jurisdictions and, in turn, on appeal to the UK Supreme Court. There is a wealth of case law underpinning the UK Supreme Court’s test which has evolved over time to ensure that courts consider changing circumstances and modern public policy.
The Government have decided against specifying a list of factors to be considered by the courts with the power to depart from retained EU case law, as the UK Supreme Court’s test is underpinned by a significant amount of case law, which provides considerable guidance. The instrument does not change the operation of the doctrine of precedent, which, practically speaking, means that when a court reaches a decision on whether to depart from retained EU case law, that judgment has the same precedent status as other judgments from that court.
As required in statute, the Government have consulted senior judiciary across the UK, a consultation process that was also extended to the devolved Administrations, as well as to representatives across the legal services sector, businesses and other organisations, and was open to the public. The consultation ran from 2 July to 13 August, with a response published on 15 October. That consultation sought views on whether to extend the power to depart from retained EU case law to the Court of Appeal and its equivalents across the UK, or to the High Court and its UK equivalents.
Having considered the responses fully, the Government have concluded that extending the power to Court of Appeal level courts strikes the appropriate balance between enabling retained EU case law to evolve more quickly, where appropriate, and providing legal clarity and certainty. It also assists in managing the operational impacts by ensuring cases are considered in a timely way. Furthermore, extending the power at this level will mitigate the impacts of potentially large volumes of divergent decisions, both within and across the UK jurisdictions, as decisions of these courts are binding on themselves and courts below as well as being persuasive across the UK’s three legal systems. Where such divergence occurs, this can be resolved more quickly by the UK Supreme Court if it is not required to consider all questions of whether to depart from retained EU case law.
I know that there was significant interest from your Lordships when the power to make this statutory instrument was introduced during the passage of the 2020 Act. I hope that your Lordships will be reassured by the consultation that has taken place and the careful approach that is being taken in extending the power to Court of Appeal level courts only.
An impact assessment has been published alongside the consultation response. Any impact is heavily dependent on both litigant behaviour in bringing proceedings seeking a departure from retained EU case law and, of course, the outcome of that litigation. However, based on a qualitative assessment, we assess that any impact on an increase in case volume as a result of this instrument is manageable at Court of Appeal level, helps to maintain legal certainty and mitigates pressure on the UK Supreme Court.
This instrument enables our courts to be better able to consider whether to depart from retained EU case law than the status quo provided in the 2018 Act. Providing these seven courts with the ability to depart from retained EU case law will allow timely evolution of our case law. It will relieve pressure on the UK Supreme Court and avoid our case law becoming fossilised. We are taking an approach that balances the importance of legal clarity and certainty with the need for the law to evolve with changing circumstances.
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