The Ministry of Justice are currently holding a consultation on how UK courts and tribunals should consider departing from retained EU case law after the transition period ends on 31 December this year.

There is much uncertainty surrounding what things will look like beyond that date. One recurring question is this: “to what extent will EU case law be followed by UK courts and tribunals?” Or in reverse: “how different will our law be from the EU going forward?”

The consultation paper from the MoJ seeks views on how powers granted to the Government by the European Union (Withdrawal) Act 2018 should be used.

Specifically, those which allow the Government to:

• “designate additional courts or tribunals with the power to depart from retained EU case law;
• specify ‘the extent to which, or circumstances in which,’ the court or tribunal ‘is not to be bound by retained EU case law’;
• set out the test which a relevant court or tribunal ‘must apply’ in deciding whether to depart from any retained EU case law; and
• specify considerations which ‘are to be relevant’ to the court or tribunal in coming to such decisions.”

To be clear, “retained EU case law” is not all preceding EU case law, but only that which has been implemented in the UK by British laws or is directly effective in the UK (which includes things such as the right to equal pay).

What is the consultation asking?

The Consultation is open for six weeks from 2 July to 13 August. There questions being considered fall under four headings. These are as follows.

The Development of UK Case Law

If the power to depart from retained EU case law is unnecessarily limited, there is a risk that the court system will become ineffective and unable to adapt as UK law inevitably changes going forward.

If, as an extreme example, only the Supreme Court could so depart then all other courts would be inflexible and it would take considerably longer for any cases which consider whether it is necessary to depart to be properly considered.

On the contrary, if the power to depart from retained EU case law is granted more broadly, there could be a greater divergence in how and when that power is used. This would lead to more confused development of UK case law going forward, and would require more cases to be addressed at appeal courts in order to clarify legal positions.

Ultimately, this could lead to a rapid increase in demand in cases going to the Supreme Court.

Clarity of, and Certainty in, the Law

If UK law diverges from the precedents established in the EU too quickly, this could create a great deal of uncertainty. This is a question which ultimately touches on the rule of law itself. A lack of clarity and certainty could lead to arbitrary use and enforcement of the law.

However, even at a smaller scale, a lack of clarity is bad for the legal system and the country. Legal uncertainty can make a country a less attractive place to do business or to settle disputes.

It is important that a consistent approach is taken to divergence from retained EU case law, so as to provide stability and confidence in the legal system. Part of this consideration will be the precedent value which ought to be given to judgments of courts and tribunals of different levels.

Inevitably, lower courts will be the first to address questions of divergence and the weight which is given to decisions of different courts is important. This question is made particularly complex due to the difference in judicial systems in the different jurisdictions in the UK.

The Impact on the Administration of Justice and the Operation of UK Courts and Tribunals

As discussed above, the extent to which the power to diverge is rolled out will have an impact on the volume of appeals and re-litigation. With this comes many practical considerations – most fundamentally the cost of dealing with an increase in volume of work coming through the courts. Part of the purpose of this consultation is for the MoJ to hear from the relevant bodies in the judicial system on what this effect will look like and how it can best be dealt with.

The Impacts on Equality

The UK Government is obligated to consider the effects of all legislation on those with protected characteristics under the Equalities Act such as age, race and sexual orientation. The consultation paper from the MoJ is brief on this heading, but it is a factor being considered.

What are the likely outcomes?

Predicting the outcomes of the consultation at this stage is obviously premature. However, the MoJ do give their preliminary views on some of the key questions considered.

It seems likely that the power to depart from retained EU case law will be limited to more senior courts – in Scotland, either the Inner House of the Court of Session only or maybe also the Outer House. It also seems likely that a legal test will be applied by courts in deciding whether or not to divert – although the wording of that test is as yet unknown.

The only constant in life is change, and law seems to be no exception. Brexit will have far-reaching implications in all areas of law and many of these are as yet unknown. If you have any questions or concerns, please don’t hesitate to be in touch.

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