The UK government has issued Regulations to repeal Regulations as it considers how to reset the UK-EU relationship.
What's the issue?
In May 2024, the then government made the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No.2 and Saving Provisions) Regulations 2024 (REUL Regs 2). They were intended to bring into force s6 of the REUL Act from 1 October 2024, subject to saving provisions. s6 REUL Act amends some of s6 of the EU (Withdrawal) Act 2018 (EUWA) which covers the role of domestic courts and tribunals in interpreting what is now assimilated EU case law (previously known as retained EU case law and still worded as such in the legislation.gov version of the REUL Act).
What's the development?
Currently winning the competition for the longest and most confusing legislation title, the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No.2 and Saving Provisions) (Revocation) Regulations 2024 were made on 18 September 2024. They essentially revoke the Commencement No.2 Regulations. In an open letter to the Bar Council the government said it "intends to look at this issue again in the wider context of its work to reset UK relations with the EU. It remains open to the government to bring forward further regulations at any point in the future to bring section 6 into force".
None of the following changes which were among those set to take effect on 1 October 2024 will now be brought in on that date:
- e6 EUWA would have set out all the rules as to when higher courts can depart from assimilated EU case law – the rules would have remained the same but are not currently contained in a single piece of legislation.
- There was going to be a new test for departure from assimilated EU case law in s6(5). The higher court would have been required to have regard when deciding whether or not to depart from any retained EU case law to: the fact that decisions of a foreign court are not ordinarily binding; any changes of circumstance relevant to the retained EU case law; and the extent to which the retained EU case law restricts the proper development of domestic law.
- The addition of a new section 6(5ZA) stated that a higher court may depart from its own retained domestic case law if it considers it right to do having regard 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 relevant to the retained domestic case law; and the extent to which the retained domestic case law restricts the proper development of domestic law.
- Provision for lower courts and tribunals to be able to refer points of law on assimilated case law by which they are bound, to higher courts.
- A provision allowing law officers to intervene in proceedings before a higher court involving potential departure from assimilated case law.
What does this mean for you?
The fact that s6 of the REUL Act has not been brought in does not mean the Court of Appeal and Supreme Court cannot depart from assimilated EU law. They are already able to under s6 of the EUWA, applying the same test as when they consider whether it is right to depart from their own law ie when it is right to do so. This is arguably a vaguer descriptor but does not necessarily result in vastly different outcomes.
The ins and outs of retained or assimilated EU law and how and when the courts can depart from it will be esoteric to all but a handful of lawyers. The greater interest will more likely be in the fact that the current government is indeed taking a different approach to the UK's relationship with the EU than that of the previous one.
This change of direction was apparent in the July 2024 King's Speech (discussed here), which struck a very different tone in terms of EU alignment. Whereas the previous government tended to emphasise departing from EU regulation, the plans around the cyber security and product safety legislation mentioned the need to keep up with EU standards and indeed the Product Regulation and Metrology Bill which was published in September 2024, explicitly empowers the Secretary of State to make regulations to correspond to relevant EU legislation (broadly EU law which harmonises conditions for the marketing or use of products in the EU) to reduce or mitigate the environmental impact of products.
It remains to be seen how the UK's relationship with the EU evolves under the new government, but current indications are that the government is seriously considering the impact on businesses of diverging too far from the EU in regulatory terms.
