In September, I reported that the Chartered Institute of Trade Mark Attorneys (CITMA) and the Chartered Institute of Patent Attorneys (CIPA) had published their response to the Ministry of Justice’s consultation on the UK courts and tribunals’ departure from retained EU case law: both CITMA and CIPA considered the power to depart from retained EU case law should be confined to the Supreme Court, and should be used ‘sparingly’ rather than extended to other courts and tribunals within the UK. On the 15 October 2020, the UK government published its response to the consultation on the proposed changes after IP completion day.
From January 2021, the courts of the UK, rather than the Court of Justice of the European Union (CJEU), will become the final arbiter of the laws that govern the lives of UK citizens. In order to promote legal clarity and certainty within UK law following departure from the EU, the UK parliament, through the EU (Withdrawal) Act 2018 (the 2018 Act), provided that EU law chosen to be retained by the UK was to be interpreted in line with the principles laid down by, and decisions of, the CJEU, as modified by UK law from time to time, subject to certain exceptions.
Without the ability to depart from retained EU case law, however, there was a risk that EU law, which had been retained, would remain tied to an interpretation from the CJEU. For this reason, the 2018 Act vested in the UK Supreme Court, and High Court of Justiciary in Scotland (in specified cases), the power to depart from retained EU case law, applying their own tests for deciding whether to depart from their own case law when doing so. Parliament also decided, in amending the 2018 Act, by the EU (Withdrawal Agreement) Act 2020 (the 2020 Act), that the list of courts, which may depart from retained EU case law, could be extended, following consultation.
On the basic question of whether the power to make regulations extending the power to depart from retained EU case law should be exercised, 27% of respondents said yes, 56% of respondents said no, and the remainder had no comment or clear view. Of the 56% that were against regulations being made at all, 43% of those said that in the event regulations were made, it would be preferable to extend no further than the Court of Appeal. On questions regarding the proposed options for regulations, 32% of respondents preferred the option of extending the power to the Court of Appeal level (and no further).
The government acknowledged that opposition to regulations included a large proportion of the legal services sector, legal academics and businesses who responded to the consultation, citing the risk to legal certainty as a key area of concern. Among the concerns, the consultation response noted the prospect of re-litigation of well-established legal principles, a divergence in legal approaches across the UK upon similar issues, an incoherent legal framework with adverse impacts in key areas such as tax, employment, environment and equalities, and possible damage to the UK’s reputation as an international legal centre.
Having considered all the responses carefully, however, the government has concluded that it is appropriate to exercise the power given under section 6 of the 2018 Act (as amended by the 2020 Act) to extend the power to depart from retained EU case law to additional courts and tribunals. The extension of the power will be restricted to the Court of Appeal (or equivalent) level. By extending the power at this level, the government considered that an appropriate balance between the need for legal certainty, and for a timely departure from retained EU case law, would be achieved. In making such decisions, the courts affected would apply the same test, which would be used by the UK Supreme Court in deciding whether to depart from its own case law.
Extending the power to depart from retained EU case law to additional courts and tribunals would provide greater scope for the interpretation of case law to evolve to recognise the UK’s changing status. The government concluded the impacts on an increase in case volumes, as a result of the power being conferred on additional courts, is manageable at Court of Appeal level, though there was a small risk of an increased financial costs to individuals, businesses and organisations: the extent of the increase being dependent on both litigant behaviour, in whether such proceedings are brought, as well as judicial behaviour in exercising the power to depart from retained EU case law. The equality impact of the approach remains to be determined, although the government expressed confidence there was no direct discrimination resulting from the policy, as it confers a power on the courts to depart from retained EU case law only when they consider it appropriate to do so, and does not prevent any individual seeking such decision, or mandate the court’s approach in such cases.