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Retained EU Law (Revocation And Reform) Act 2023

Contents

Interpretation and effect of retained EU Law

Section 6: Role of courts

  1. This section amends section 6 of EUWA and inserts new sections 6A, 6B and 6C in relation to the application of retained case law by domestic courts interpreting and applying REUL.
  2. Section 6 modifies section 6 of EUWA as follows. Subsections (2), (3) and (4) insert amended provisions into section 6 of EUWA as regards the test to be applied by higher courts (that is, courts equivalent in authority, or higher than, the Court of Appeal, and their equivalents in Scotland and Northern Ireland) when considering whether to depart from retained EU case law or retained domestic case law. Retained EU case law and retained domestic case law continue to be defined in section 6(7) of EUWA.
  3. Subsection (3) establishes a new test to be applied by higher courts when considering whether to depart from retained EU case law, replacing the test in section 6(5) of EUWA. The new test sets out a non-exhaustive list of three factors for the higher court to consider, so that it must (among other things) have regard to:
    1. the fact that decisions of a foreign court are not usually binding,
    2. any changes of circumstances which are relevant to the retained EU case law, and
    3. the extent to which the retained EU case law restricts the proper development of domestic law.
  4. These reflect some of the factors which the Court of Appeal in England and Wales took into account in deciding whether to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441.
  5. Subsection (4) establishes a new test to be applied by higher courts when considering whether to depart from their own retained domestic case law, by inserting a new paragraph (5ZA) into section 6 of EUWA. This also sets out a non-exhaustive list of three factors for the higher court to consider:
    1. The extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart,
    2. Any changes of circumstances which are relevant to the retained domestic case law, and
    3. The extent to which the retained domestic case law restricts the proper development of domestic law.
  6. This list of factors in relation to retained domestic case law is similar to the list of factors in relation to retained EU case law. They differ on the first factor, as regards the relevance of the decisions of foreign courts as a factor according to whether EU or domestic case law is under consideration. The second and third factors are the same in each test.
  7. Subsection (5) repeals the powers in subsections (5A) to (5D) of section 6 of EUWA which are now spent, but which were exercised to make the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 ("the 2020 Regulations"). These regulations provided that the Court of Appeal and equivalent courts across the UK have the power to depart from retained EU case law, applying the same test as that used by the UK Supreme Court in deciding whether to depart from its own case law. The regulations are now superseded by the amendments made to section 6(4) EUWA by section 6(2). As amended, section 6(4) EUWA provides that the Supreme Court, High Court of Justiciary and "relevant appeal court" are not bound by retained EU case law (except so far as there is relevant domestic case law modifying or applying the retained EU case law and which is binding on the relevant appeal court). Subsection (6) inserts a new subsection (6B) into section 6 of EUWA with definitions for "compatibility issue", "devolution issue", "relevant appeal court" and "relevant domestic case law", and subsection (7) inserts a definition of "higher court" into section 6(7) of EUWA. The provisions in the Act on the role of the courts maintain the position under section 6 of EUWA and the 2020 Regulations that only courts (in England & Wales, Scotland and Northern Ireland) equivalent in authority, or higher than, the Court of Appeal, have the discretion to depart from retained case law.
  8. Section 6(4)(b)(i) of EUWA sets out that the High Court of Justiciary is not bound by retained EU case law when it is sitting as a court of appeal otherwise than in relation to a compatibility issue (within the meaning given by section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995) or a devolution issue (within the meaning given by paragraph 1 of Schedule 6 to the Scotland Act 1998). Subsection (2) of section 6 of the Act amends section 6(4)(b)(i), together with section 6(4)(ba) of EUWA and inserts new provisions after section 6(4)(b)(ii) of EUWA. This codifies and clarifies in section 6 that the High Court of Justiciary is not bound by any retained EU case law in these instances, or when it is sitting as a court of appeal in relation to a compatibility issue or devolution issue. This means that the High Court of Justiciary can depart from retained EU case law across the whole of its jurisdiction, where there is no relevant domestic case law which modifies or applies the retained EU case law which is binding on the court. This represents no change from the current position.
  9. Section 6 does not disturb section 6(6A) of EUWA, which makes clear that the provisions in section 6 of EUWA about the interpretation of retained EU law are subject to "relevant separation agreement law". Section 7C of EUWA directs courts to interpret that law in accordance with the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss Citizens’ Rights Agreement (so far as they are applicable). Therefore the measures taken by this Act to introduce new tests for the higher courts to follow when considering departure from retained EU case law will also be subject to relevant separation agreement law.
New Section 6A EUWA – References on retained case law by lower courts or tribunals
  1. Section 6(8) inserts a new section 6A into EUWA. It establishes a new reference procedure enabling a lower court or tribunal which is bound by retained case law under section 6 of EUWA to refer a point of law to a higher court (which is not so bound) to decide.
  2. New section 6A(1) provides that the lower court or tribunal may, at its discretion, refer one or more points of law which arise on retained case law, if they are relevant to the proceedings before it. The court or tribunal must:
    1. be bound by the retained case law on the point of law concerned, and
    2. consider that the point or points of law are of general public importance.
  3. The test of ‘general public importance’ is similar to that set out in section 12 of the Administration of Justice Act 1969, in relation to ‘leapfrog’ appeals that may be made directly from the High Court in England and Wales to the Supreme Court.
  4. New section 6A(2) provides that references may be initiated by the court or tribunal of its own motion, or following an application by any party to the proceedings.
  5. New section 6A(3) provides that a reference must be made to the appropriate appeal court, but must be made to the Supreme Court if it concerns the retained case law of that court. The appeal court is defined in new section 6A(9) as the court listed in subsection (10) to which an appeal would lie in the case.
  6. New section 6A(4) and (5) provides that the higher court may accept a validly made reference if, like the lower court or tribunal, it considers that the point of law referred is relevant to the proceedings and is of general public importance.
  7. The higher court is not compelled to accept a validly made reference, and has a general discretion to decline references-for instance, on issues which have recently been decided, are currently under consideration, or have no reasonable prospect of success
  8. New section 6A(6) provides that, after accepting a reference, the higher court must decide the point(s) of law concerned. The case will then return to the lower court or tribunal, which must follow and apply the decision so far as relevant to the proceedings.
  9. New section 6A(7) provides that the decisions on whether or not to make a reference, or to accept one, are decisions for the court or tribunal concerned alone; no appeal may be made against such a decision. New section 6A(8) provides that, where an appeal court has accepted a reference and made a decision on the point(s) of law concerned, an appeal may lie against that decision to the Supreme Court, subject to obtaining permission to appeal.
New section 6B EUWA: References on retained case law by law officers
  1. Section 6(8) inserts a new section 6B into EUWA, which establishes a new procedure for a law officer of the UK Government or the devolved administrations to refer a point of retained case law to a higher court.
  2. Law officers may exercise the reference power on behalf of their respective Governments in cases where other ministers have a particular view as to the meaning and effect of a relevant piece of REUL. It is expected that law officers and ministers would agree this approach in the usual way, as they would for other legal proceedings that their Government participates in. For example, in a case concerning English legislation in the area of fisheries or agriculture, the Attorney General might consult the relevant Secretary of State on the Government’s view of the relative merits of referring a point of law to the higher court. The power will allow the law officers to then bring the point of law before a higher court to consider in light of the new tests for departure from retained case law, for the court to give a decision on the correct interpretation of relevant REUL.
  3. The law officers are listed in new section 6B(2) and (8) as the Lord Advocate, the Counsel General for Wales, the Attorney General for Northern Ireland, the Attorney General for England and Wales, the Advocate General for Scotland, and the Advocate General for Northern Ireland.
  4. New section 6B(1) provides that the new reference procedure applies where proceedings have concluded in a court or tribunal which was required by section 6 of EUWA to follow retained case law. This applies where:
    1. proceedings have been brought and concluded before a lower court or tribunal that was bound by retained case law under section 6 of EUWA,
    2. no reference was made by the lower court in the case to a higher court, under new section 6A (as described above), and
    3. either there has been no appeal, or any appeal has been concluded or dismissed without it being heard by a higher court.
  5. New section 6B(2) provides that a law officer of the UK Government or devolved administrations may refer points of law which arise on retained case law in the proceedings to a higher court. A law officer of a devolved administration may only make a reference on a point of law that relates to the meaning or effect of relevant Scotland, Wales or Northern Ireland legislation (as the case may be), as defined in new section 6B(8). Under section 6 of EUWA, the higher court is not bound by retained case law, and may decide whether or not to depart from retained case law on the point of law referred.
  6. New section 6B(3) requires the reference to be made within six months of the last day on which an appeal in the case could have been made, or within six months of the day on which any appeal was finally dealt with. New section 6B(9) provides that the possibility of an appeal out of time is not relevant for the purpose of calculating this period.
  7. New subsection 6B(4) provides that a reference must be made to the appropriate appeal court, but must be made to the Supreme Court if it concerns the retained case law of that court. "Appropriate appeal court" is defined in new section 6A(9). The list of courts set out in section 6A(10) applies in this context.
  8. New section 6B(5) requires the higher court to accept a validly made reference.
  9. New section 6B(6) provides that the decision of the higher court on the point of law referred has no effect on the outcome of the proceedings which concluded before the lower court or tribunal. However, in accordance with the doctrine of precedent, the decision on the point of law will be binding on lower courts or tribunals in future proceedings where the same point of law arises.
  10. New section 6B(7) provides that, where the appropriate appeal court has made a decision on the point(s) of law concerned, an appeal may lie against that decision to the Supreme Court, subject to obtaining permission to appeal.
  11. New section 6B(8) defines relevant Scotland, Wales or Northern Ireland legislation for the purpose of references made by a law officer of a devolved administration as:
    1. an Act or measure passed by a devolved legislature;
    2. subordinate legislation made by a devolved administration;
    3. provisions inserted by such an Act, measure or subordinate legislation into any other legislation; or
    4. any other provision that:
      1. would be within the legislative competence of a devolved legislature if it were contained in an Act or measure passed by that devolved legislature, or
      2. a provision which could be made in subordinate legislation by a devolved administration acting alone.
  12. Appeal courts have discretionary case management powers which they may exercise in references under new section 6B. For example, in the event of multiple references from different law officers, a court may choose to join references for a single hearing where appropriate. Or in the event of a reference by one law officer, it may choose to permit an intervention from another law officer or other interested party
New section 6C EUWA: Interventions on retained case law by law officers
  1. Section 6(8) inserts a new section 6C into EUWA, which confers on the law officers of the UK Government and devolved administrations a right to intervene in proceedings before a higher court. It applies the same definitions of law officers as new section 6B. New section 6C(1) provides for the right to intervene to apply where a higher court is considering any arguments that the court depart from retained case law.
  2. In a similar way to the reference power in new section 6B, law officers may exercise the intervention power on behalf of their respective Governments in cases where other ministers have a particular view as to the meaning and effect of a relevant piece of REUL, and it is expected that law officers and ministers would agree this approach in the usual way.
  3. New section 6C(2) and (3) require that the law officers are given notice of such proceedings and, on giving notice to the court, are entitled to be joined as a party to the proceedings. Under new section 6C(3), the intervention rights of law officers of the devolved administrations apply only where the arguments relate to the meaning or effect of relevant Scotland, Wales or Northern Ireland legislation. New section 6C(5) applies the definition of such legislation set out in new section 6B.
  4. New section 6C(4) provides that notice of an intention to join the proceedings may be provided to the court by a law officer at any time during the proceedings.
  5. Subsection (9) of section 6 adds an entry to the Table in EUWA in section 21(1) (index of defined expressions), to include "Higher court". This reflects the definition of "higher court" inserted into section 6(7) of EUWA by section 6(7) of the Act.
  6. Subsection (10) of section 6 inserts a new subsection (10) into section 60A of the Competition Act 1998. Section 60A makes provision permitting courts, tribunals and other authorities to depart from retained case law and principles of EU law when exercising their competition law functions, and sets out the factors to be taken into consideration when doing so. The new subsection (10) provides that the provisions of section 6(2) to (6) of EUWA (as modified by section 6) on courts and tribunals following or departing from retained case law do not apply in place of the more specific provisions in section 60A.

Section 7: Compatibility

  1. Subsection (1) provides that a national authority (a UK government or devolved government minister) may make regulations providing that subsection (2) applies to the relationship between –
    1. specified standard domestic legislation or specified provisions of any standard domestic legislation, and
    2. specified retained direct EU legislation (RDEUL) or specified provisions of any RDEUL.
  2. Where subsection (2) applies, it gives priority to RDEUL, so that the specified standard domestic legislation (or specified provisions of this legislation) –
    1. must, as far as possible, be read and given effect in a way which is compatible with the specified RDEUL (or specified provisions of this legislation), and
    2. is subject to that RDEUL (or those provisions) so far as it is incompatible with it.
  3. Where subsection (2) applies, the relationship between standard domestic legislation and RDEUL specified by the new section 5(A2) of EUWA, which is inserted by section 3, does not apply. (That provision gives priority to standard domestic legislation over RDEUL.)
  4. Subsection (3) establishes that the provision that can be made by regulations under this section can be made by making modifications to any enactment.
  5. Subsection (4) provides that no regulations may be made under this section after 23 June 2026.
  6. Subsection (5) defines "domestic enactment" consistently with the meaning it has in section 5 of EUWA (as inserted by section 3(2) of this Act).

Section 8: Incompatibility orders

  1. This section inserts a new section 6D into EUWA, making provision as to the remedies which the courts may grant following the repeal of the supremacy principle. These apply in cases where the courts are applying the new priority rule for domestic legislation over RDEUL in section 5(A2) of EUWA inserted by section 3(1) of the Act, or the contrary priority rule applied by secondary legislation made under the power in section 7(1).
  2. New section 6D (1) and (2) require a court to make an "incompatibility order" where it concludes that provisions of domestic legislation and RDEUL cannot be interpreted consistently with one another.
  3. New section 6D(3) provides that a court may adapt the terms and effect of an incompatibility order according to the case before it. The order may:
    1. set out the effect in the case concerned of one provision taking priority over another;
    2. delay the coming into force of the order, or
    3. remove or limit the effect of the operation of the relevant provision in other ways before the incompatibility order comes into force, for example, where this might give rise to unfairness to individuals or other effects contrary to the public interest.
  4. New section 6D(4) allows the court to make an incompatibility order subject to conditions.
  5. New section 6D(5) defines "domestic enactment" consistently with its meaning elsewhere in EUWA as provided for by the Act. It also defines "the relevant provision" by reference to section 5(A2)(b) of EUWA and section 7(1) of the Act, which relate to, respectively, the new priority rule (described above) and the power to reverse that priority rule. .

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