The government has announced that the Court of Appeal will be allowed to depart from retained EU case law after the Brexit transition period ends on 31 December.
Until, only the Supreme Court and the High Court of Justiciary in Scotland were to have been given this power. In July, the Ministry of Justice consulted on extending the power to other courts, presenting two options.
Publishing the government’s consultation response yesterday, the ministry said the government was satisfied that the power to depart from retained EU case law should extend to the Court of Appeal in England and Wales, the Court of Appeal of Northern Ireland, the High Court of Justiciary in Scotland when sitting as a court of appeal in relation to compatibility or devolution issues, the Inner House of the Court of Session, the Lands Valuation Appeal Court and the Registration Appeal Court.
The consultation response says: ‘Extending the power to this limited list of additional courts will help achieve our aim of enabling retained EU case law to evolve more quickly than otherwise might have been achieved. Such a step would help mitigate the operational impacts on the UK Supreme Court and High Court of Justiciary in Scotland which would arise if the power were reserved solely to those courts; and there will be benefits to the UK Supreme Court in being assisted by a prior judicial dialogue on these complex issues from the Court of Appeal or the relevant appellate court in Scotland or Northern Ireland.
‘By restricting this power to the highest appeal courts, we will also minimise the risk, identified in the consultation responses, of adverse impacts which may arise out of any legal uncertainty resulting from additional litigation being brought, and the risk of divergence of approach between courts across the UK.’
Commenting on the government’s response, lord chancellor Robert Buckland QC said: ‘Once the transition period is over, it is absolutely right that UK courts have the final say on legal disputes affecting our nation. This move provides legal certainty while ensuring that UK case law can quickly evolve to reflect our new status as an independent country following departure from the EU.’