The Cheshire Cat’s grin: section 6’s appearance and disappearance

In this post, Jack Williams of Monckton Chambers provides an update on the commencement of section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”).

Today (1 October 2024) was supposed to be the day when section 6 of the REULA commenced pursuant to the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) Regulations 2024 (SI 2024/714) (“Regulations”). I previously discussed those Regulations and the corresponding commencement of Part 68 of the Civil Procedure Rule here.

The new Government has, however, revoked those Regulations (made only earlier this year prior to the election) by passing on 17th September the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) (Revocation) Regulations 2024.

Section 6 of the REULA will therefore no longer come into force (at least for now).

The Government has explained in an open letter to the Bar Council that:

_{“the new 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.”}

Impact

Section 6 of the REULA would have made amendments to section 6 of the EU (Withdrawal) Act 2018 (“EUWA”). Most notably:

• the test for departing from assimilated case law would have been modified to provide a gentle nudge to the courts to depart more readily;
• the courts which can depart from assimilated case law would have been defined in statute, rather than secondary legislation;
• the test for departure from assimilated case law in section 6 of the EUWA (as would have been amended) would have been disapplied for competition law cases; it would have been clarified that the test for departure from assimilated case law in such cases is instead that in section 60A of the Competition Act 1998;
• a new reference procedure would have been introduced allowing points of law on assimilated case law to be referred by lower courts (which would be bound by such law) to higher courts (which are not); and
• new rights of intervention for the UK or devolved law officers would have been introduced in circumstances where higher courts are considering departing from assimilated case law.

These amendments are now not in force as a result of the revocation of the Regulations. This means that section 6 of the EUWA stands as originally drafted. Much like the Cheshire Cat’s grin, section 6 of the REULA appeared and, not before long, disappeared again.

 It is true, as the Government stated in its letter to the Bar Council, that:

_{“It is already possible for higher courts in the UK to depart from assimilated case law on appeal under the EU (Withdrawal) Act 2018, and this will not change as a result of this decision.”}

The non-commencement of section 6 of the REUAL does mean, however, that section 6 of the EUWA stands without the ‘new’ test for departing from assimilated case law which would have been what I described in my oral evidence to Parliament on the (then) Bill as:

_{“essentially a nudge to the courts—a gentle nudge but a nudge none the less—in order to encourage greater departure from retained case law. It achieves that by essentially modifying the test for when certain courts—the Court of Appeal upwards, generally speaking —may depart from retained case law, and it does so by listing three particular factors. As a normal matter of statutory interpretation, when certain factors are listed, they are to be given greater significance and weight. Each of those factors in its own terms is encouraging departure. What you do not see there, for example, which was very clear in the House of Lords practice direction, which this is moving away from, is whether it is right to depart from case law, based on legal certainty grounds and taking into account that change in case law by judges necessarily is different from changes that the politicians and Parliament bring into force prospectively. That has implications for certainty, because one does not know what cases the judges may or may not apply, but also for something that has not been discussed this morning: the separation of powers. This puts an awful lot of policy decisions in the hands of judges.”}

But what about the new court rules?

As I have previously discussed, the Civil Procedure (Amendment No. 3) Rules 2024/839 brought into force today (1 October 2024) a raft of new provisions in new CPR Part 68 which essentially make provision for references to higher courts and interventions by the law officers pursuant to sections 6A to 6C of the EUWA and concerning the test for departure from assimilated case law. However, those sections of the Act are not in force given the revocation of the Regulations.

Curiously, however, it appears (from a quick search on Westlaw at least) that the CPR amendment regulations have still commenced and are now in force (see regulation 15 and the Schedule with the new Part 68). They are, however, clearly redundant and ineffective without the underlying statutory machinery in force. This seems like an oversight, or at least an anomaly.

The same does not (at least yet) apply to the new Supreme Court rules, which have likewise made provision for references and interventions on the basis of section 6 of the REUAL, but are not due in force until December. Time will tell whether those rules will have something upon which to bite, or whether they will disappear, too.

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