Letter to Ministry of Justice: Departure from retained E.U. case law: 12 August 2020

According to the European Union (Withdrawal) Act 2018 (the “2018 Withdrawal Act”), as amended by the European Union (Withdrawal Agreement) Act 2020 (“2020 Withdrawal Act”), on 31 December 2020, when the Transition Period between the U.K. and E.U. ends, U.K. courts and tribunals will cease to be bound by the principles laid down by the Court of Justice of the European Union (“CJEU”).  The 2018 Withdrawal Act created a new category of law in the U.K.: “retained law”. Retained E.U. law, as far as it is unmodified at the end of the Transition Period, is to be interpreted in line with retained case law, which comprises retained domestic case law and retained E.U. case law.

Section 26(1) of the 2020 Withdrawal Act empowers HM Government to designate additional courts and tribunals (over and above the U.K. Supreme Court and the High Court of Justiciary) as having the ability to depart from retained E.U. case law. The Ministry of Justice is now consulting on whether to extend the power to other courts and tribunals and, if so, which test should be applied and factors considered in any decision by a court or tribunal to depart from retained E.U. case law.

The FMLC has submitted a response urging HM Government not to extend the ability to diverge from retained E.U. case law.  With regards the test to be applied in the course of any consideration about departing from retained E.U. law, the FMLC has previously urged HM Government to consider offering principles to the judiciary by which it can evaluate consistently whether consideration should be given to post-Brexit ECJ judgments.  If the ability to depart from retained E.U. case law is extended to the lower courts, the FMLC would recommend that a stricter test is imposed that that which is applied by the Supreme Court currently.

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