UK government pauses the introduction of courts' expanded EU case law departure powers
Published on 3rd Oct 2024
As the new government reconsiders the UK's relationship with the EU, broad powers that encouraged UK courts to depart from assimilated case law have been put on hold
Section 6 of the Retained EU Law (Revocation and Reform) Act 2023 sets out broad powers that, when they are in force, will allow the UK Court of Appeal and Supreme Court to depart from assimilated case law. This is what was formerly known as retained EU case law and retained domestic case law (domestic case law that has been influenced by assimilated/retained EU case law). These powers would allow, or perhaps even encourage, the courts to depart from established principles of UK case law influenced by assimilated EU law.
Section 6 can only be brought into force by commencement regulations. The previous government had introduced these regulations and the provisions were set to come into force on 1 October 2024. Since then, the UK has had a change of government and the new government has decided to revoke these commencement regulations. This means that the powers will not come into force in October 2024 and there is no clarity on when or if they will be introduced.
Reconsidering UK/EU relations
In a letter from the Department for Business & Trade, the Director of Regulation explains that these expanded court powers will no longer come into force on 1 October 2024 because the government intends to "look at this issue again in the wider context of its work to reset UK relations with the EU".
The introduction of these expanded powers could create legal uncertainty by prompting the re-litigation of established principles of UK case law influenced by EU law and encourage the courts to forge a new path in interpreting UK law without the influence of EU law. At the moment, this has been avoided.
Before the election, the Labour Party manifesto stated that it would seek to "reset the relationship and seek to deepen ties with our European friends, neighbours and allies". Pausing the introduction of these powers that could lead to the entrenchment of further divergence from the EU position perhaps indicates the present government's commitment to establishing closer ties with the EU. However, the letter does not rule out bringing in commencement regulations at some point in the future.
Osborne Clarke comment
Pausing the introduction of these powers kicks the can down the road. At least for the time being, potential legal uncertainty has been avoided, which will be welcomed by businesses trying to navigate an already evolving post-Brexit landscape.
The Civil Procedure Rules and the Supreme Court Rules were due to be amended to facilitate the introduction of section 6, including the powers that would have allowed lower courts to make referrals to the Court of Appeal or Supreme Court on points of law. Those amendments will now no longer be necessary (at this stage at least).
Even though these new powers will not be introduced yet, since the end of the Brexit transition period, the Court of Appeal and Supreme Court have been able to depart from assimilated EU case law (not assimilated domestic case law) in certain, more limited, circumstances (only when it appears right to do so – the same test the Supreme Court applies when departing from its own case law). These powers will remain in force but, so far, have been exercised cautiously by the courts.
Whether these expanded departure powers will ever be introduced remains to be seen. It is likely to be dependent on the government's commitment to resetting the UK/EU relationship and how this plays out in practice.
