Wielding Someone Else’s Broom: The Government Consults On Departing From Retained EU Case Law

On 2nd July 2020, the UK Government began a six-week consultation process on whether to designate, and if so under what conditions, additional courts and tribunals that can depart from retained EU case law after the end of the transition period (link to the consultation: here). This would involve using powers under section 6(5A) of the European Union (Withdrawal) Act 2018 (as amended). Before making such regulations there is a requirement for mandatory consultation with senior members of the judiciary in each of the jurisdictions of the UK and with ‘such other persons as the Minister of the Crown considers appropriate’ (s 6(5C) of the Act).

There is a sense of urgency to the consultation as the powers to make such regulations lapse at the end of the transition period (s 6(5D)) and so the regulations must be in place by 31st December 2020.

This blog post will unpick the issues and the perceived direction of travel that can be deduced from the consultation paper and the preliminary views of the Government contained within. To extend the range of courts and tribunals that can depart from retained EU case law is an interesting and marked change in direction from consistency and certainty to greater divergence and flexibility. The post will briefly account for the current position and the consultation document before considering the implications of any change. There will be a particular focus on the proposed ‘test’ to be applied by courts and tribunals, given that the Government's preferred approach is to apply the same 'test' that the Supreme Court uses when deciding whether to depart from its own judgments.

A use of the powers in the European Union (Withdrawal) Act 2018 has implications not only for the status of retained EU case law but also for the broader position of precedent in the English and Welsh Legal System and the independence of the judiciary. These are all a major focus of the textbook that accompanies this blog and website.

If you are familiar with the contents of the consultation, you may wish to skip ahead to the analysis towards the end of the blog.

Interpretation of Retained EU Case Law

One of the intentions of the European Union (Withdrawal) Act 2018 is to regularise the position of EU law following the end of the transition period and to ensure a consistent and certain application of the law into the future. This aim is recognised in the introduction of the consultation paper (page 2). This aim competes with other aims, including the need to be able to develop English & Welsh law following the end of the transition period. Case law of the Court of Justice of the European Union on interpretation of ‘retained EU law’ given before the completion of the implementation period is binding on all courts other than those named in section 6(4) as retained EU case law or, where it finds expression in the domestic courts, as retained domestic case law.

Original position

As originally drafted, it was only the Supreme Court of the United Kingdom and the High Court of Justiciary in Scotland that were able to depart from these interpretations in retained EU case law (s 6(4)). Moreover, even these two courts could only do so insofar as they applied ‘the same test as [they] would apply in deciding whether to depart from [their] own case law’ (s 6(5)). For the Supreme Court, this means that it can only depart from relevant interpretations in retained EU case law where the 1966 Practice Direction applies – i.e. ‘when it appears right to do so.’ (Practice Direction Judicial Precedent [1966] 1 WLR 1234). It is well-established that this power is to be used sparingly and after careful consideration (for more on this see: a further blogpost on this website and Willers v Joyce [2016] UKSC 44, [2016] 3 WLR 534 [7]). For England & Wales, this essentially gave the relevant case law of the CJEU the status of a Supreme Court judgment with, short of legislation from Parliament, only the Supreme Court able to overturn it.

Amended position

Section 6(4) was amended by the European Union (Withdrawal Agreement) Act 2020 so as to potentially give scope to widen the range of courts and tribunals that would be able to depart from retained EU case law. This extension is expressed in the following terms:

“s6(4)(ba) a relevant court or relevant tribunal is not bound by any retained EU case law so far as is provided for by regulations under subsection (5A)” European Union (Withdrawal Act) 2018

The Act lays out the scope of any potential regulations in the following way:

“s6(5A) A Minister of the Crown may by regulations provide for—

(a) a court or tribunal to be a relevant court or (as the case may be) a relevant tribunal for the purposes of this section,

(b) the extent to which, or circumstances in which, a relevant court or relevant tribunal is not to be bound by retained EU case law,

(c) the test which a relevant court or relevant tribunal must apply in deciding whether to depart from any retained EU case law, or

(d) considerations which are to be relevant [to the test to be applied]” European Union (Withdrawal) Act 2018

It is the making of the regulations anticipated in section 6(5A) that is subject to the present consultation.

Summary of the consultation

The consultation considers the conditions of any extension of the courts and tribunals able to depart from retained EU case law, taking into account:

“the policy aims of enabling more courts to depart from retained EU case law, whilst at the same time maintaining legal certainty across the UK.” (page 7)

The Government has developed two options, based on an initial assessment of the following ‘issues to be considered’: development of case law beyond the transition period; the clarity and certainty of the law; the administration of justice and operational impacts in the UK jurisdictions.

The two options identified are whether to:

“1. Extend the power to the Court of Appeal of England and Wales and its closest equivalents in other UK jurisdictions; or

2. Extend the power, in addition to the Court of Appeal and equivalent courts, to the High Court of Justice of England and Wales and its closest equivalents in the other UK jurisdictions.” (page 7)

Issues to be considered

In arriving at the options above, the Government considered a number of issues that will now be summarised briefly. This section of the blogpost avoids engaging with a critical analysis of these findings/observations of the Government, preferring to reserve that until later in the post.

Development of UK case law

First, the Government is concerned with the development of UK case law. The paper recognises that the current position (of reserving the right to depart to the Supreme Court and the High Court of Justiciary in Scotland) is likely to slow the development of case law. This is an obvious point – that the higher up the judicial hierarchy a precedent lies, the more difficult it is to displace. By extending jurisdiction to depart to other courts it would ‘allow for the more rapid development of retained EU law’ (page 7). The paper warns against allowing the law to become ‘fossilised’ (a phrase used first by Theresa’s May’s Government).

There is a recognition that there is ‘a counter risk that extending the power to depart from retained EU case law to more courts and tribunals could ultimately increase the number of cases brought to the UK Supreme Court’ (page 8) and that ‘there is a secondary risk with option 2 that there will be a greater increase in the volume of cases to the Court of Appeal or Inner House of the Court of Session than with option 1.’ (page 8)

Clarity of and certainty in the law

Perhaps central to the balancing exercise undertaken in the paper is the tension between freeing the legal system from the shackles of retained EU case law and the need to preserve certainty in the law. Such legal certainty is, of course, a foundational pillar of doctrine of precedent and allows the common law to operate effectively.

The need for certainty is acknowledged by the consultation paper and a fairly detailed analysis of the competing interests is undertaken. In sum, the paper:

“recognises the need to provide legal clarity and certainty in our law…That was one of the overarching policy aims of the Government through the 2018 and 2020 Acts. However, the Government also considers that it is important that UK courts and tribunals are not bound to retained EU case law for longer than is appropriate and in the interests of the UK and that potential litigants have sufficient ability to seek a change to retained EU case law where it adversely affects them.” (page 8)

The Government is mindful of the very real risk of re-litigation in commercially sensitive areas, such as tax, but also in relation to the foundational principles of EU law as captured in retained EU case law. The paper notes not only that this uncertainty is damaging to the law but also to the ‘brand’ of the legal systems of the UK as attractive venues for dispute resolution.

The paper also makes an obvious but important point: the further down the judicial hierarchy that any power to depart is extended, the greater the risk to the consistency of approach across the jurisdictions of the UK (i.e. Scotland, England & Wales and Northern Ireland) and the attendant risk of ‘forum shopping’ (i.e. parties opting to conduct their litigation in the jurisdictions most likely to give them the answer that they want).

Contained within this broad section of the consultation paper is a helpful and detailed account of the rules of precedent that operate at different levels of the legal jurisdictions of the UK. It concludes with some high level observations about the merits of ‘describing’ a test that would be applied by any court or tribunal given the power to depart from retained EU Law. It is expressed in the following way:

“Some of the issues in relation to the risk of uncertainty in the law and the risk of divergence, and even those relating to the precedent value of decisions could be mitigated through the description of the test to be applied and the factors to be considered.We are equally mindful of the need for any test not to fetter judicial discretion and of the complexity of seeking to codify a comprehensive range of factors which may be relevant in a very wide range of litigation.” (page 15)

Impact on the administration of justice and the operation of UK courts and tribunals

By taking into account the above factors, the paper rejects an extension of the power to depart to all courts. This would seem to be an acceptance that the risks identified above – re-litigation, uncertainty, damage to the brand and complexity – would be most acute if any court could depart from retained EU case law. It is on this basis that the Government formulated the options identified above and formed the preliminary views on which it is now consulting.

Preliminary Views of the Government

The Government is ‘mindful’ of the risks but nonetheless feels that it is ‘desirable’ for the power to depart to be extended. The counterbalance to the risks identified is to:

• limit the range of courts that will gain this power. Under Option 1 this would be the Court of Appeal in England & Wales and its equivalents in the other jurisdictions of the UK and under Option 2 this would be the High Court and its equivalents

• ensure that (in Option 1) the Court of Appeal is to be bound by a prior judgment of the Supreme Court on a decision to depart from retained EU case law and that (in Option 2) the High Court is to be similarly bound by a judgment of the Court of Appeal

• prescribe a single test for courts and tribunals to apply when considering whether to depart from retained EU law

Whether to include a test

In rather short form, the paper recommends that a test is necessary. The ‘starting point is that it is desirable, as far as possible, for the same test to be applied by the relevant courts…in order to provide clarity to the courts and tribunals on the test which should be applied, and to promote as far as possible consistency of approach and legal certainty across the different jurisdictions of the UK.’ (page 20)

The proposed test

In terms of the test to be applied, the paper proposes that:

“extending the test applied by the UK Supreme Court when considering whether to depart from its own case law to the relevant courts and tribunals would achieve our objective of promoting consistency of approach and minimising the risk of divergence across the different jurisdictions of the UK.” (page 23)

This would mean extending, for matters relating to retained EU case law, the principles contained within the 1966 Practice Direction on Precedent to either the Court of Appeal and its equivalents (under Option 1) or the Court of Appeal and the High Court and its equivalents (under Option 2). This essentially boils down to a test of departing where ‘it appears right to do so’. There is a fairly well-developed set of case law evidencing when the Supreme Court has so departed from its own prior judgments but it has also always eschewed reducing this down into a formal test. The Government does not wish to specify how courts should apply that test as that would run ‘the risk itself of imparting a degree of unwanted inflexibility into the application of that test.’ (page 23)

Given the preference for adopting, wholesale, the test applied by the Supreme Court, the Government does not deem it necessary to exercise the power to provide ‘exhaustive list of relevant considerations on the face of the regulations.’ (page 24)

Analysis of the findings of the consultation and its underlying assunptions

The consultation paper provides an interesting insight into the Government’s thinking around the future of CJEU case law in the legal systems of the UK. It highlights many of the relevant factors (and risks) but does not necessarily engage in a wider conceptual analysis of the place of precedent in England & Wales, or of the rightful independence of the judiciary.

The starting point of this analysis is that extension of the power to depart from retained EU case law beyond the Supreme Court and High Court of Justiciary in Scotland is a bad policy. The risks to uncertainty and fragmentation are evident. The rules contained within retained EU case law are not just technocratic points of detail but also sweeping general principles that have been transplanted, incubated and developed over the entire period of the UK’s membership of the European Union. It makes sense that such principles can be overturned only by the highest court in the jurisdiction or by Parliament legislating the point. This was clearly the view of the, more cautious, Parliament sitting in the 2017-2019 and appeared to be Government policy as Dominic Raab noted that it was important that the Supreme Court had ‘the last word on the laws of the land’ (HC Deb 14 November 2017, vol 631, col 289). To extend the powers further is to put those courts (and the Supreme Court) in a very difficult position.

The Parliament sitting in the 2019-2021 session was clearly minded differently and, despite discussion of the risks in the various stages of the Bill’s passage, did extend the possibility of regulations designating additional courts with the power to depart from retained EU case law in the European Union (Withdrawal) Act 2020. When we move beyond the principle of extending the power to additional courts, we run into the detail of the suggested Options and of the test that would be applied. This raises any number of problems, some of which are discussed below, and which further reinforce this as a poor policy choice. Some of these criticisms are based on risks already identified by the Government consultation, whilst others highlight those that do not appear on the face of consultation.

Legal certainty: the test

The extension of an ‘it appears right to do so’ test to lower courts is problematic. The Government may be achieving consistency but it will not be achieving certainty and it is this conflation of the two principles that causes issues elsewhere (discussed below) as well.

Proposing to extend the test applied by the Supreme Court (‘it appears right to do so’) to lower courts will be difficult. This is an extremely open-textured test and one that the Supreme Court has itself resisted defining too closely. It is far from clear how a lower court would reach an assessment that it is ‘right’ to depart from principles and rules contained in retained EU case law as that law is as much a part of the legal system as any other. Given that much of this retained law is of long lineage and significantly entwined with the development of domestic law, it may prove difficult for a court to come to a conclusion that it is ‘right’ to depart from it.

Moreover, this would risk the politicisation of the judiciary as some of the choices around retained law amount to policy decisions about the extent and nature of continuing protection of rights that emanate from the EU. This is something that would be a somewhat unexpected from a government that has warned against the politicisation of the judiciary. There is something telling in the consultation paper that may explain this surprising position. When discussing Option 2, the paper says that the advantage of extending the power to depart is ‘of enabling more people to argue to challenge retained EU case law which adversely affects them’ (page 18). This significantly moves the conversation from one of the evolution of the common law to revolution by the common law. The hope might be that the lower courts readily embrace this power to roll-back on some of the purposive interpretation of the CJEU. This would place the judiciary in a very difficult position of having to make choices about whether it was ‘right’ to amend and give new interpretation to principles of retained law that amount to policy choices.

More difficult (and perhaps interesting) is the question of how this test will develop in relation to appeals. It is one thing for a final court to find that it can depart from its own previous decision in a different case and quite another for a lower court to come to a similar conclusion on retained EU case law. This is because such a decision would be subject to appeal. In the case of the Supreme Court there is a sense of finality and, within a single dispute, this is an end of the matter. This achieves closure and is a manifestation of the doctrine of res judicata. This is not true in the case of a lower court. Appeals to the most senior courts in England & Wales (particularly on civil matters) are generally only permissible on matters of law. It is difficult to see how this would operate where the appeal related to the question of whether a lower court was correct in its finding that it had departed ‘when it appear[ed] right to do so.’ This would be a difficult endeavour within the procedural history of a given case but perhaps even more difficult where leave to appeal to the Supreme Court was refused or not sought. This would leave a lingering uncertainty that could defeat the very sense of certainty that the proposals seek to engender.

Legal certainty: re-litigation

The consultation highlights the risks of re-litigation and gives the example of ‘tax’ as a policy area where this might occur should the designation of courts able to depart from retained EU case law be drawn to widely. It is to the Government’s credit that it recognises the risk but it does not really give it the emphasis it deserves.

I have written elsewhere on the Franked Income Investment Litigation (see Ryan Murphy, ‘Why does tax have to be so taxing? The Court revisits the Franked Investment Income litigation’ (2013) 38 ELRev 693). The litigation concerned the compatibility of principles of UK tax law with EU internal market law. The saga is long, messy and brain-achingly complex, not to mention expensive. The litigation rumbles on today in the Supreme Court (see here) but it began its life more than 10 years ago, such are the financial stakes and complexities involved. The potential rewards of overturning principles contained with retained EU case law dwarf by eye-watering orders of magnitude the costs of such litigation. Organisations and businesses are likely to make calculations about the risk/reward ratio and to extend the power to depart to the High Court makes that gamble all the more attractive. Nonetheless, there is every prospect that these cases will sluggishly progress through the system as they rattle (perhaps again) towards the Supreme Court, sapping further court time. These cases often involve governmental actors and so legal costs (ultimately held by the taxpayer) may rise significantly. This is but one aspect of one area of EU law.

To re-open the potential rulebook (on substance and principle) is a dangerous step. It is of interest to note that the consultation paper shifts from a focus on development of principles contained within retained EU case law to a position of ‘enabling more people to argue to challenge retained EU case law which adversely affects them’ (page 18). This is a small point but one that is important and is worth repeating. Casting this in terms of challenge rather than development may signal an encouragement by the Government for re-litigation of seemingly settled law. It would be better to adopt a more cautious approach of allowing the Supreme Court to act as an effective filter on development.

The relationship between retained EU case law and domestic case law on retained law: a lack of symmetry and sense

The proposed extension, under either Option, leads to an unhelpful lack of symmetry in the development of future domestic case law based on retained EU law. This could be very damaging to legal certainty and even frustrate the policy aim(s) contained within the consultation document. Under the 2018 Act, permitting the Supreme Court to depart from retained EU case law by reference to the existing ‘test’ in the Practice Direction of 1966 led to something of a mirror effect. CJEU judgments took on the status of Supreme Court judgments and so could be overturned by that same court. The Supreme Court could already depart from existing domestic case law, either because it is contained in judgments from courts lower in the judicial hierarchy or because of its ability to depart from its own previous judgments. This means that the Supreme Court is able to aid the development of retained law in an equal way, regardless of the way in which it entered the legal system.

The consultation document focusses very much on retained EU case law – i.e. those judgments of the CJEU that have not made their way into a domestic judgment of a UK court because the dispute had originated in another Member State or through a Commission enforcement action or action for annulment – all which do not involve the UK judiciary. There is little in the consultation document on retained domestic case law – i.e. those UK cases that reached the CJEU by way of a reference under Article 267 TFEU, or those UK cases that applied a previous judgment of the CJEU. The consultation mentions retained domestic case law (at pages 19-20) but the mention is brief and the Government appears not to have formed any particular views on the matter.

The problems here are manifold and difficult to unpick but goes directly hand in hand with any decision on retained EU case law. Whether a particular interpretation of EU law arises from a reference to the CJEU from Poland or from the UK does not change its quality or nature as binding law of the European Union. There is, for want of a better phrase, a jus commune amongst the jurisdictions of the Member States insofar as they are applying the judgments of the CJEU, regardless of their origin. Equally, whether a prior judgment of the CJEU has been ‘applied’ by a UK court is largely a matter of happenstance and factual coincidence facing those minded to litigate. Neither of these circumstances changed, during the UK’s membership, the nature of the obligations or the status of the law. They also do not necessarily correlate to the importance or significance of the particular law being interpreted. Some areas (tax, in the UK) were more heavily litigated than others. The approach of the Government, when considering extending the power to depart from retained EU case law but not retained domestic law, seems to be highlighting and reinforcing a hierarchy of norms that is based on process rather than substance. Such a distinction is difficult to sustain and does not have the symmetry of power evident for the Supreme Court.

This blogpost is in danger of being interpreted as to be recommending that the symmetry should be achieved by extending the power to depart from domestic case law to other courts. For the sake of clarity, this could not be further from the intentions of its author. The problems of certainty and a lack of symmetry for the common law would be even greater. Rather, it should be a warning of the very big can of worms that would be opened by any extension of the power to depart from retained EU case law beyond the Supreme Court (and the High Court of Justiciary).

Do the Options seek to designate the ‘correct’ courts and tribunals

The consultation leaves some questions ‘open’, not least which courts and tribunals are to be regarded as ‘equivalent’ to the High Court (under Option 2) and whether or not the Government should open the gate even further and extend to other courts and tribunals. The Employment Appeals Tribunal (EAT) springs instantly to mind, given that appeals from there progress directly to the Court of Appeal. The decision as to whether to extend the power to depart to the EAT will be of fundamental importance. Many of the CJEU’s most expansive judgments have come in the field of employment law and there are a great many of these judgments that would fall within the category of ‘retained EU case law’ (i.e. those that have not received specific treatment by a UK court). Whether the EAT can depart from retained EU case law ‘where it appears right to do so’ will be a crucial question for the future development of retained EU law and it is one that the Government seeks views but presently has no view of its own. Or at least not a view it is sharing in this consultation.

Who wields which broom? The separation of powers and judicial comity

The way in which the Government has framed the discussion in the consultation paper poses interesting, unarticulated questions (with no answers) about judicial independence and the separation of powers in a common law system. We have the executive, by means of secondary legislation, proposing to disrupt the established principles and rules of precedent. Taking a step back from the extraordinary times in which we are operating, this is (to excuse the pun) an unprecedented move.

From the outset, even the terms of the consultation might prove to be problematic for the coherency of the judicial voice. The Government is required to consult, by virtue of section 6(5C), a wide range of judicial actors before passing regulations to designate additional courts able to depart from retained EU case law. This includes senior members of the UK judiciary (including the President of the Supreme Court) and senior members of the judiciary in the different jurisdictions (including the Lord Chief Justice of England & Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland and the Senior President of Tribunals). It is not quite clear what, if any, the relative weight is to be given to the views of the judiciary as a whole or by virtue of their individual offices.

One might hope for a unified approach but this is far from guaranteed. Is the view of the President of the Supreme Court to be given a different weighting to the voices of the Lord Chief Justices and Lord President? One might think that the voice of the President of the Supreme Court might come with a particular weight (given the test being claimed for all is that which is currently reserved to that court) but, equally, the Lord Chief Justices and the Lord President have particular representative functions (as recognised, in a different context, by section 5 Constitutional Reform Act 2005).

The duty to consult does not come with a concomitant duty to enact the views of the senior judiciary. It would be most unfortunate, but not impossible, for the Government to ignore the views of the senior judiciary and even to enact legislation that runs counter to their views.

Moving away then from the durty to consult to the substance. The consultation paper describes in quite significant detail the various approaches to precedent that are in operation in the relevant jurisdictions (pages 20-23). The account is clear and highlights the complexity and richness of approach that is evident between the different levels of court in how they treat decisions of the same and other courts. It is, in many ways, a very useful account of the hierarchy in operation in the jurisdictions of the UK. However, the narrative provided by the Government focuses on the complexity rather than the richness of the rules. By this I mean that the authors of the consultation paper do not engage with a critical reflection as to why the complexity exists or what purpose it seeks to achieve. Instead the paper puts forward the following view:

“In light of its objective to have a single test to provide clarity and promote consistency of approach, the Government is of the view that the additional courts and tribunals who are able to depart from retained EU case law should not each rely on their own test of whether to depart from their own case law.” (page 22)

On one, rather superficial, level there is merit in consistency but this should not come at the expense of the richness. The consultation paper does not engage with the fact that the courts in England & Wales have already considered the merits of extending the 1966 Practice Direction to the Court of Appeal, albeit in the context of purely domestic cases. The conclusion was that it had the potential to cause too much uncertainty and should not be done. One can only assume that a suggestion of generally extending it to the High Court would lead to much the same result. It would be useful for the Government to revisit the debate provoked by Lord Denning’s valiant but doomed efforts to seize the principles of the 1966 Practice Direction and apply them to the Court of Appeal. It is worth revisiting some of the arguments here as they remain relevant to a discussion of whether or not to extend a power to depart from retained EU case law.

Shortly following-on from the introduction of the Practice Direction 1966, Lord Denning (who was Master of the Rolls at the time) sought to apply a similar principle within the Court of Appeal. His brethren in the Court of Appeal were not so easily swayed and felt that Denning had ‘sought to wield a broom labelled "For the use of the House of Lords only."’ (Gallie v Lee [1969] 2 Ch 17 (CA) 41). When Denning did eventually find allies in the Court of Appeal, he was unceremoniously shot down and admonished by the House of Lords in Davis (Davis v Johnson [1979] AC 264 (HL)). Lord Diplock specifically noted the balance to be drawn between one the one side ‘legal certainty resulting from the binding effort of previous decisions, and, on the other side the avoidance of undue restriction on the proper development of the law.’ (Davis, 326). This has echoes of the balancing undertaken by the Government but with a different outcome. The presence of the opportunity to appeal to the highest court resulted in the House of Lords in Davis drawing that balance in a different place for intermediate appeal courts. This specific judicial balancing of the merits is not considered by the Government, despite its obvious relevance.

In addition, the House of Lords in Davis considered a factor not addressed by the Government in its current consultation. And that is the different structures in place between the Court of Appeal, the High Court and the Supreme Court. Legal certainty would be put into question partly because of the use of smaller, more varied panels in the lower courts. This is, perhaps, even more true now than it was at the time of Davis. The current Supreme Court has only 12 justices and tends, increasingly, to sit in panels with more than 3 Justices. The Court of Appeal has nearly 40 Lord and Lady Justices of Appeal (plus a number of judges who sit in an ex officio capacity) and almost inevitably sits in panels of 3. This means that the risks to consistency and certainty are great elevated as compared to the Supreme Court. Obviously this holds water not only for any potential extension to the Court of Appeal (under Option 1) but even more so to the High Court (under Option 2) with nearly 100 Justices of the High Court. Departing 'when it appears right to do so' is too wide a test for an intermediate appeals court that can sit in so many configurations.

Precedent: a doctrine or a practice?

The consultation pays lip service to not wanting to ‘fetter judicial discretion’ (page 15) but does not look more deeply to whether it is appropriate as a matter of principle for the executive to be dictating the rules of precedent to the judiciary. On one view, the rules of precedent are distilled from the common law and so their determination is very firmly within the domain of the judiciary and have an elevated status as a result. This view gains some support from those quarters that describe the rules of precedent as a ‘doctrine’ (see Willers v Joyce [4]). This world view would mean that a direct interference from the Government is a breach both of the separation of powers and risks the independence of the judiciary.

Another perspective is that the rules of precedent come about as a sort of collective judicial agreement (known as judicial comity) amongst judges at the same level in the hierarchy that is then respected by other levels of the hierarchy and other jurisdictions within the UK. This is one explanation of why it took a statement from the whole of the House of Lords, in the form of a Practice Direction as opposed to a judgment in a case, to alter the approach of the highest court to its own judgments. This view of the rules of precedent find favour in cases of the Court of Appeal during the 1960s (see: Gallie v Lee, 49 per Salmon LJ). This does not bestow a ‘doctrine-like’ status on the rules (they are more akin to a practice) but equally makes governmental intervention unwise and undesirable.

On either world view, it is for judges to decide the relevant tests of binding precedent and not for Government to dictate which might be the most 'straightforward' approach.

The forgotten role of Parliament

One of the major flaws in the consultation paper is the scant reference to the role of Parliament. It is mentioned once and only in relation to concerns raised about certainty during the passage of the 2020 Bill (page 8). This is a problematic oversight. It has to be accepted that there is a risk that retained EU case law may become ‘fossilised’ in the law of England & Wales, if only the Supreme Court can depart from it. Getting to the Supreme Court is costly and far from guaranteed. However, it is always possible for Parliament to signal a clear change of direction and legislate to change a problematic law or principle. This possibility is not considered in the consultation paper and would mitigate against some of the risks identified with the added benefit of being a visible manifestation of the mantra ‘taking back control’.

Concluding comments

The UK has left the European Union. Freezing the legal position at the end of the transition period in perpetuity is undesirable and the law touched by the long membership of the EU must be capable of being developed over time. If this is to be a task entrusted, in part, to the common law then judges must be able to depart from existing retained EU case law. However, one of the hallmarks of the common law is its evolutionary approach based on a settled system of hierarchy achieved through the rules of precedent. This ensures certainty and consistency. More revolutionary approaches should be for Parliament.

The position under the European Union (Withdrawal) Act 2018, as originally enacted, sought a more sensible and measured balance between the competing values of consistency and flexibility. Entrusting the power to depart from retained EU case law to the final courts in the UK meant that the law could continue to be developed in as symmetrical a fashion as the common law allows. The amendment in 2020 is a marked change in direction and places much more emphasis on divergence and challenge. It is of little surprise that the consultation on the use of the powers is also peppered with the language of challenge.

Some of the major risks (re-litigation and uncertainty) are identified by the consultation paper but they are largely underplayed or weighted too lightly in the balance. There are also additional risks not envisaged in the consultation that strike at the very heart of the judicial role. There is a very real risk that the judiciary is accused of politicisation as it is forced to make policy choices about the future of retained law, under the guise of 'development'. It will be interesting to see what the consultation brings, particularly from the senior judiciary.

Should the consultation be followed by secondary legislation then we may be about to enter into a new period in the history of precedent, one where the beat of the drum is dictated more by Government than by the most senior judges through case law and Practice Directions. The Government may not just be wielding a broom belonging to someone else but may be creating new brooms all of its own.

#precedent #legalsystem #judiciary #SupremeCourt #EuropeanUnion