Rules on how the courts should interpret assimilated EU case law and when they can depart from it.
What's the issue?
The Assimilated EU Law (Revocation and Reform) Act received Royal Assent in July 2023. It revoked around 600 pieces of legislation at the end of 2023, and gave the government extensive powers to revoke, restate, replace and update secondary EU Assimilated law. It also made changes to the supremacy of law provisions. Some of these changes took effect at the end of 2023 and some have applied since the Act came into force but others, including s6 which deals with the role of the courts, the extent to which they are bound by EU law and their discretion to depart from it, were dependent on secondary legislation.
What's the development?
The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No.2 and Saving Provisions) Regulations 2024 (REUL Regs 2) were made on 28 May 2024. They 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). Changes to the EUWA include:
Consolidation
e6 EUWA will set out all the rules as to when higher courts can depart from assimilated EU case law – the rules remain the same but are not currently contained in a single piece of legislation. Definitions are added including the definition of "higher court" as a relevant appeal court, the Supreme Court of the High Court of Justiciary when sitting as further set out in s6(7) REUL Act, and a list of relevant appeal courts. The end position is largely as set out in the EUWA and the European Union (Withdrawal) Act (Relevant Court) (Retained EU Case Law) Regulations 2020. These Regulations will fall way as the REUL Regs 2 repeals the powers under which they were made.
New test for departure from assimilated EU case law
There will be a new test for departure from assimilated EU case law in s6(5). Rather than being able to do this "when it appears right to do so", the higher court must have regard when deciding whether or not to depart from any assimilated EU case law to (among other things):
- The fact that decisions of a foreign court are not ordinarily binding.
- Any changes of circumstance relevant to the assimilated EU case law.
New section on when a higher court may depart from its own assimilated domestic case law
Assimilated domestic case law comprises the principles and decisions of UK courts laid down and made before the end of the Brexit transition (implementation) period where they relate to assimilated law and as modified by UK law after the end of the Brexit transition period. New section 6(5ZA) states that a higher court may depart from its own assimilated domestic case law if it considers it right to do having regard to (among other things):
- The extent to which the assimilated domestic case law is determined or influenced by assimilated EU case law from which the court has departed or would depart.
- Any changes of circumstances relevant to the assimilated domestic case law.
Re-wording as to when a relevant court of tribunal is not bound by assimilated EU case law
This reflects the wording of the 2020 Regulations and states that a relevant appeal court is not bound by any assimilated EU case law unless there is binding relevant domestic case law which modifies or applies the assimilated case law.
Provision for lower courts to make references to higher courts
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 which are able to depart from it under certain conditions. The higher courts are not required to accept the references but where they do, the lower courts will be bound by their decision.
Intervention by law officers
A new provision allowing law officers to intervene in proceedings before a higher court involving potential departure from assimilated case law and to refer points of law to a relevant higher court after lower court proceedings have finished although any higher court decision will not affect concluded lower court proceedings.
Saving provisions in the REUL Regs 2
The saving provisions provide that s6(5) as amended and s6(5ZA) of the EUWA and s6C do not apply to cases where before 1 October 2024, an appeal to the higher court in question lay as of right, lay or was referred by way of case stated, was granted leave or permission, or was commenced by any other originating process.
What does this mean for you?
The chain of legislation from the EUWA down to the latest set of Regulations is extremely complex to decipher, not least because you have legislation amending legislation amending legislation. As such they are most likely to be scrutinised by lawyers and, in particular by litigators. It is, however, useful to remember that there will be different rules of interpretation in the courts going forward.
