Brexit: The UK Government’s consultation on extending the right to depart from Retained EU law beyond the Supreme Court

From 1 January 2021, the meaning of EU-derived law will be determined in the UK courts by reference to CJEU case law as it exists on the date of exit. Such historical CJEU case law will be given the same binding, or precedent, status as decisions of the Supreme Court. In this regard, see s 6 of the Act. However, amendments made by the European Union (Withdrawal Agreement) Act 2020, s 26 provide for regulations to be made (subject to conditions) for other courts or tribunals not to be bound by EU Retained Law. These regulations would have to particularise the extent to which, or circumstances in which, a court or tribunal ‘is not to be bound by retained EU case law’, and for laying down the test which would apply ‘in deciding whether to depart from any retained EU case law’, including the ‘considerations’ which are ‘relevant to’ any court applying the ‘test’ for when to depart from such case law. There are two savings. First, specified senior judges must be consulted before any such regulations are made, and no regulation can be made after the end of the Implementation Period Completion date (see generally s 6(5A)–(5D) of the 2018 Act). See 17[1.02].

A Government Consultation on Departure from EU-retained case law by UK Courts and tribunals was published on 2 July 2020 and ended on 13 August 2020: . In the end, the Government’s response, published on 15 October 2020 ( ) to this consultation on extending the right to depart from retained EU law beyond the Supreme Court has been to extend the power to depart from retained EU law beyond the Supreme Court to the Court of Appeal and equivalent courts, but no further. Its reasoning was this:

‘The Government agrees that extending the power to additional courts will alleviate the pressures on the UK Supreme Court. The President of the UK Supreme Court acknowledges that “a proportion of the cases…would still be likely to come to the UKSC on appeal, but the number would be likely to be much lower than if the UKSC were the only avenue available.” The Government is particularly mindful of the impact on case volumes and timeliness in the UK Supreme Court who will have to balance these new additional cases alongside the existing work before the Court. The UK Supreme Court has 12 justices who, in addition to sitting in the UK Supreme Court also sit in the Judicial Committee of the Privy Council. We consider that, if the power were not extended to additional courts, the UK Supreme Court could become a bottleneck to the timely resolution of such cases due to an increase in demand. This delay in the resolution of cases could in itself result in legal uncertainty as parties to the proceedings, and those with an interest in those proceedings, have to wait longer for a final decision that would provide a certain way forward.’

There was no majority of consultees in favour of this. Thus:

‘Do you consider that the power to depart from retained EU case law should be extended to other courts and tribunals beyond the UK Supreme Court and High Court of Justiciary?’


Yes         20           27%

No          42           56%

So this was an unpopular decision. But it could have been much worse.

The Government has also concluded that these additional courts should apply the same test as will be used by the UK Supreme Court in deciding whether to depart from retained EU case law. Guidance on those principles may be gleaned from the following House of Lords Practice Statement: