Brexit: retained EU law in the departure lounge

The eyes of most Brexit watchers are on the trade talks in Brussels.  In the background, however, the process of legislating for the post-Brexit world continues. 

One set of regulations – the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 – passed earlier this week has an effect on the way in which UK courts and tribunals will handle issues of EU law after 1 January 2021. 

By way of brief reminder:

• The effect of the UK Brexit legislation is, in broad terms, that general principles of EU law form part of “retained EU law” and are carried into UK law in the form in which they are at the end of the transition period. (This general principle is subject to any changes that are made by legislation or regulation).
• Any changes and modifications to those general principles of EU law which occur after 1 January 2021 – for example, because of a decision of the CJEU after that date – are not automatically part of UK law.  UK courts may, however, have regard to such CJEU decisions.
• The Supreme Court and, in some cases, the High Court of Justiciary in Scotland are not bound CJEU case law from before 31 December 2020 ("retained EU case law") and so can, in appropriate cases, depart from it.

The Brexit legislation also gave the government power by regulation to specify other relevant courts and tribunals which could depart from retained EU case law. The new regulations specify the Court of Appeal in England and Wales and in Northern Ireland, and the Inner House of the Court of Session in Scotland as “relevant courts” for this purpose. 

This is quite important.  Not many tax cases make their way to the Supreme Court.  Far more find their way to the Court of Appeal.  So this change brings with it a much greater prospect of UK law in the post-Brexit world departing from established EU case law principles in the application of EU derived law.