Pre-Brexit EU rulings to have equal status with Supreme Court decisions

Rulings of the Court of Justice for the European Union (CJEU) delivered before Brexit day will be retained in UK domestic law and be given equal status to Supreme Court rulings, the long-awaited repeal bill has confirmed.

Published today, the European Union (Withdrawal) Bill says principles arising from decisions of the CJEU made before the day Britain leaves the EU – a date as yet unspecified – will be retained. The bill also confirmed that EU-derived domestic laws and directly applicable EU laws operating before exit day will form part of UK law.

The Supreme Court or Scotland’s High Court of Justiciary can depart from any CJEU decisions or EU laws by applying the same test it would apply when departing from its own case law, the bill added. A UK court or tribunal may refer to CJEU decisions post-Brexit if it considers it appropriate to do so.

‘Clearest possible guidance’

The government’s plans to give pre-Brexit CJEU jurisprudence equal status to Supreme Court decisions only half-answered one of several concerns Lady Hale has about the weight that should be given to CJEU judgments before and after Brexit where UK law is unclear.

The Supreme Court’s deputy president was giving a lecture to the Canadian Institute for Advanced Legal Studies about the UK’s constitution in which she called on parliament to provide the ‘clearest possible guidance’ as to how UK courts should treat EU law after Brexit.

The favourite to take over from Lord Neuberger as president of the UK’s highest court also called for clarification on what judges should do ‘if existing UK regulations imperfectly implement an existing EU directive’. The UK makes regulations in line with EU directives but where an incompatibility arises, Lady Hale said the courts currently go straight to the meaning of the latter.

The repeal bill prescribes that when a UK court is faced with this situation, judges will continue to determine that meaning or effect themselves as a question of law.

Securing rights

Lady Hale had suggested it would be helpful ‘to know what to do with CJEU jurisprudence which relies upon the Charter [of Fundamental Rights of the European Union] for some of its reasoning’. She cited last month’s Supreme Court hearing of R (HC) v Secretary for Work and Pensions and others about the rights of so-called ‘Zambrano carers’.

‘Zambrano carers’ are third-country nationals who are primary carers of EU national children and who must be allowed to live and work in the EU, otherwise the children would be obliged to leave the EU and be deprived of their EU citizenship rights. The court is considering arguments focused on non-discrimination and the rights of children, protected by articles 21 and 24 of the Charter.

Today’s bill announced that the Charter would be no part of domestic law on or after exit day. However, by converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law. Moreover, references to the Charter in the retained domestic and CJEU case law are to be read as if they referred to the corresponding fundamental rights.

‘Henry VIII powers’

One other area of contention in the bill is the inclusion of so-called ‘Henry VIII clauses’, named from the Statute of Proclamations 1539, which gave King Henry VIII power to legislate by proclamation. They allow legislation to be created or amended without parliamentary scrutiny.

Lady Hale warned that while a host of technical changes were needed for existing legislation to make sense after Brexit, ‘a flurry of judicial review applications’ could ensue’, so the courts ‘may need special powers’ to expedite cases.

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress