Courts' power to depart from EU law: ministers consult

Which British courts should have the power to depart from retained EU case law after the end of the Brexit transition period is the subject of a new consultation by the UK Government.

At present, under the European Union (Withdrawal) Act 2018, only the UK Supreme Court and the High Court of Justiciary in Scotland will have this power from 31 December 2020, but UK ministers are keen that other courts do not feel bound by EU law after that time.

Under proposals set out by Lord Chancellor Robert Buckland, more courts would be given the power to move away from retained EU case law, to "enable the law to evolve more flexibly to recognise the UK’s changing status following on from our departure from the EU, as we take back control of our laws".

The consultation sets out two options to expand the number of UK courts and tribunals that can depart from retained EU law, whilst maintaining legal certainty across the country. The Ministry of Justice will consider extending the powers to either:

• the Court of Appeal of England & Wales, the Inner House of the Court of Session in Scotland, the Court of Appeal of Northern Ireland and equivalent level courts throughout the UK;
• or, those courts and the High Court of England & Wales, the Outer House of the Court of Session in Scotland, the Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.

The Lord Chancellor said: "At the end of the transition period it is absolutely right that British courts have the final say on legal disputes, where appropriate.

"We will work with judges and the legal sector to decide exactly which courts should have the power to depart from retained EU case law and will set out our plan in due course."

Click here to access the consultation. The deadline for responses is 13 August 2020.