MoJ consultation on extending judicial power to depart from EU law

Only the most senior British courts should be given powers to depart from retained EU case law from 31 December, according to a government consultation.  

The consultation document published by the Ministry of Justice (MoJ) proposes two options for extending judicial powers for the courts in the UK to depart from EU law.

Under The European Union (Withdrawal) Act 2018, the UK’s courts and tribunals will no longer be bound by EU law or decisions of the European Union Court of Justice made or passed when the transition period ends on 31 December this year.

Furthermore, retained and unmodified EU law will be interpreted in line with retained case law and, without further regulations, from 31 December this year only the Supreme Court and Scotland’s High Court of Justiciary will have power to move away from retained law.

Lord Chancellor Robert Buckland said that to enable the law to evolve “more flexibly”, more courts should have power to move away from those EU case laws which we retain, eg those involving our fisheries, borders and taxes.

The consultation on post-EU reforms for the British courts states: “Divergence from retained EU case law is important to ensure the law remains flexible and appropriate to the UK’s situation following its departure from the EU.”

The consultation sets out two potential alternatives to extend the courts’ powers in the UK under consideration by the MoJ.

It could extend them to the Courts of Appeal of England and Wales and in Northern Ireland, the Inner Court of Session in Scotland, and equivalent level courts throughout the UK.

However, the MoJ said this carries the risk that cases could take longer to consider and the law becomes “fossilised”.

Alternatively, it could extend the powers to those courts – as well as the High Court of England and Wales; Scotland’s Outer House of the Court of Session, Sheriff Appeal Court and High Court of Justiciary; and Northern Ireland’s High Court.

The risk with extending the powers to more courts and tribunals could ultimately increase the number of cases brought to the UK and “drive re-litigation” in areas such as tax; and lead to a greater increase in the volume of Court of Appeal or Inner House of the Court of Session cases.

The MoJ is inviting responses from the legal sector and the judiciary (as well as businesses) on which courts should have power to depart from retained EU case law “whilst maintaining legal certainty”.

The government acknowledged that the proposals will have a direct impact on the service justice system, businesses and some enforcement bodies where the subject matter area is largely developed by EU law.

The government says the consultation, which closes on 13 August 2020, delivers on its commitment for the UK courts to have the final say on legal disputes as expressed in the 2016 referendum.

Mr Buckland said it is right that that as the transition period ends, the British courts should have the final say on legal disputes “where appropriate”.

“We will work with judges and the legal sector to decide exactly which courts should have the power to depart from retained EU case law”, he commented.

Any regulations to be made must be made before the end of the year.