The Law Society of England and Wales has responded to a consultation by the Ministry of Justice on retained EU case law and the power for UK courts to depart from this.

The proposals

The consultation centres on proposals to use the power in s.6 of Withdrawal Agreement 2020. This power allows a Minister of the Crown to make regulations to designate additional courts or tribunals with the power to depart from retained EU case law, the extent to which they may do so and the test they must apply.

The consultation provided two options:

Option 1 - extending the power to depart from retained EU case law to the appellate courts and their equivalents.

Option 2 - extending the power to depart from retained EU case law to the appellate courts and the high courts.

Our view

The Law Society’s preference, that the power should not be extended beyond the Supreme Court, was clearly highlighted in half of the answers to the questions posed in the consultation. Our view is that this will avoid legal uncertainty and a departure from established judicial precedent. Further, any uncertainty would lower confidence in the justice system and ultimately become an indirect barrier to individuals seeking redress from the courts.

However, of the two options posed, the Law Society prefers (but does not support) Option One. In addition, the Law Society set out its preference that the Supreme Court outlines any additional factors for consideration in deciding whether to depart from EU case law, in future case law.

Next steps

The consultation closed on 13 August 2020. The Ministry of Justice will consider the responses and set out its final proposals in due course.

Read the consultation on the GOV.UK website

For further information or sight of the Law Society response please contact