Lord Sales raised some interesting points concerning the status of retained EU law in his recent lecture on the “Implications of Brexit and COVID-19 for UK Law” at the New Zealand Senior Courts Judges’ Conference, Tauranga, 15 – 17 April 2021. We previously blogged about the status of retained EU law and the first Court of Appeal decision considering this issue.

Commenting on the doctrine of stare decisis, he said this:

However, the UK’s approach to retained EU law effectively creates an exception to the doctrine [of stare decisis]. Courts which have the power to depart from these decisions are free to decide whether to follow judgments on retained EU law made on or before 31 December 2020 not only by the CJEU, but also by themselves, and particularly significantly, by the UK Supreme Court. The Court of Appeal is thus theoretically able to depart from the Supreme Court’s decisions on retained EU law which were handed down before the end of the Transition Period. Albeit only in limited circumstances, this removes some of the protections through which our system has traditionally ensured legal certainty in the sphere of decision making.

Whilst acknowledging the possibility in theory, he went on to clarify that, “in practice, it is perhaps unlikely that we will start to see the Court of Appeal routinely overturning Supreme Court decisions on retained EU law.”

Also noteworthy was his explicit recognition of the politically charged nature of the Supreme Court’s future relationship with the CJEU. This will surely be an issue playing on the minds of the other members of the Supreme Court and it is interesting to see it openly raised in this lecture:

A final issue to mention which will affect the Supreme Court is, to what extent should domestic courts have regard to and treat as persuasive CJEU judgments handed down post-Brexit which interpret legislative instruments which are part of the corpus of retained EU law? This is an area which has scope to be politically charged and the court will wish to be able to show that it is following the directions given in the legislation. Domestic courts are not bound by post-Brexit CJEU decisions. According to section 6 of the 2018 Act, they may have regard to such caselaw “so far as it is relevant to any matter before the court or tribunal”. That is quite an open-ended test. It remains to be seen how it is applied in circumstances where the CJEU and the domestic courts are interpreting the same legislative text but in the context of very different wider legal orders.

One possibility (of which practitioners in particular should take note) is that the Supreme Court will adopt a similar approach to that of the EFTA Court:

The UK courts may find themselves looking at the caselaw of the EFTA (European Free Trade Area) Court which interprets the European Economic Area agreement, which replicates many provisions of the EU Treaties, and does so by looking at CJEU jurisprudence but “aiming off” to the extent necessary to take account of the different treaty architecture applicable in relation to the EFTA states.

James Beeton Cross-Border

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