On 18 September (published on 26 September) The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No.2 and Saving Provisions) (Revocation) Regs 2024 came into force meaning section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (departure from assimilated case law) is not now coming into force on 1 October 2024.

What does this all mean?

Since Brexit, the European Union (Withdrawal) Act 2018 (as amended – the EU(W)A) has governed the way in which EU derived law (formerly referred to as retained EU law, now assimilated law) is applied in the UK. We have previously published a guide to the main concepts of the EU(W)A.

Under section 6 of the EU(W)A, most courts below the level of the Supreme Court and Court of Appeal were bound to interpret Revocation and Reform Act 2023 (REUL) in line with relevant judgments of the EU and UK courts made before the end of 31 December 2020. UK courts could have regard to, but were no longer bound, by principles laid down, or decisions made, by the EU courts after that date.

The Retained EU Law (Revocation and Reform) Act 2023 (the REUL Act) significantly changed to the status, operation and content of retained EU law/assimilated law on 1 January 2024. The REUL Act abolishes the principle of supremacy of EU law. This means the rules which give retained EU law priority over conflicting UK law passed or made before the end of the Brexit transition period no longer apply. The REUL Act also abolishes the general principles of EU law, unless saved by new domestic legislation.

But not all of the provisions contained in the REUL Act came into force on 1 January 2024. The manner in which UK courts interpret retained EU law/assimilated law under section 6 of the EU(W)A were due to change as a result of section 6 of the REUL Act, but this provision did not come into force on 1 January 2024, instead needing subsequent implementing regulations. If implemented, section 6 of the REUL Act includes provisions which:

  • permit the Supreme Court and Court of Appeal to depart from legacy Court of Justice of the European Union (CJEU) case law when interpreting assimilated law, but do not oblige them to do so;
  • imposes a (non-exhaustive) statutory test for higher courts when deciding to depart from legacy CJEU case law. The Supreme Court and Court of Appeal must have regard to the fact that decisions of a foreign court are not generally binding;
  • imposes a related statutory test for higher courts when deciding whether to depart from retained domestic case law;
  • a new reference procedure enabling lower courts and tribunals to refer a point of law on assimilated case law by which they are bound to a higher court for determination; and
  • a new reference procedure enabling law officers to refer a point of law on assimilated case law to a higher court and a right to intervene in proceedings before a higher court involving potential departure from assimilated case law.

On 24 May 2024, the previous Conservative Government made the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) Regulations 2024 (SI 2024/714) being the second and last commencement regulations made under REUL to bring into force section 6 on 1 October 2024, subject to saving provisions. But…

On 18 September 2024 (published on 26 September 2024) The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) (Revocation) Regulations 2024 came into force meaning that section 6 of the Act will no longer come into force on 1st October 2024.

A simple postponement or a significant change in Brexit policy?

The explanatory note to the Revocation Regulations does not give any indication as to the reason for the U-turn but the Department for Business & Trade (DBT) has written to the Bar Council on 26 September to explain that

"… the new Government has revoked those commencement regulations so section 6 will no longer come into force this October. This Government intends to look at this issue again in the wider context of its work to reset UK relations with the EU. It remains open to the Government to bring forward further regulations at any point in the future to bring section 6 into force."

Accordingly, this appears to be a significant shift in post-Brexit policy.

Legal certainty

It should be noted that, it is already possible for higher courts to depart from assimilated case law on appeal under the EU(W)A. This will not change as a result of section 6 not being implemented. The Supreme Court is no longer bound by decisions of the Court of Justice of the European Union (CJEU), including those handed down before 2021. But they are expected to treat pre-2021 precedents in the same way as they would treat their own precedents, namely as "normally binding" but capable of being departed from "where it appears right to do so". In practice, this means departing from CJEU case law very sparingly in favour of legal certainty. Legal certainty enables individuals to reliably conduct their affairs in light of settled law and legal principles. The Court of Appeal can also depart from a CJEU decision, applying the same test as the Supreme Court, though remains bound by Supreme Court decisions. The lower courts and tribunals remain bound by CJEU case law unless subsequently departed from by the higher courts.

If section 6 of the REUL Act is ever brought into force introducing the new test which encourages the higher court to depart from pre-existing CJEU case law and enabling the lower court and tribunals to refer questions on whether to depart from previously binding case law – this all means uncertainty . The greater possibility of departure from existing case law under section 6 REUL would inevitably bring the potential for increased litigation with lengthy appeals as parties seek to overturn the effect of long-standing embedded EU case law.

For now, section 6 RUEL is simply shelved while higher level talks between the UK and the EU continue on a future relationship rather than being binned. This marks a significant shift in post-Brexit EU relations as we enter a phase of uncertainty over the question of legal certainty.

To discuss the Retained EU Law (Revocation and Reform) Act 2023 or any of the points raised in this article, please contact Connie Cliff or Kieran Laird.