The Ministry of Justice is seeking lawyers’ views on which British courts should have the power to depart from retained EU case law after the Brexit transition period ends.
At present, only the Supreme Court and the High Court of Justiciary in Scotland will have the power to depart from retained EU case law when the transition period ends on 31 December.
Today, the ministry said its proposals to give more courts the same power on case law concerning, for instance, fisheries, borders or taxes, would ‘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’.
Two options are presented in a consultation paper.
The first is to extend the power to depart from retained EU case law to the Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK.
The second option is to extend the power further - to the High Court of England and 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.
Lord chancellor Robert Buckland said: ‘Since leaving the EU we are no longer bound by European laws, and it is absolutely right that British courts have the final say on legal disputes. 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.’
The consultation closes on 13 August.