In this blog post, Jack Williams of Monckton Chambers discusses the recent Supreme Court judgment in C G Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities [2025] UKSC 35 concerning the ongoing interpretive role of EU law.
As I have previously discussed (here), the Court of Appeal in Fry held, applying orthodox, domestic principles of purposive interpretation, that the originating EU law source (here, the Habitats Directive) remained relevant to the meaning of the domestic, EU-derived legislation (here, the Habitats Regulations). The Court specifically took account of the fact that the Habitats Regulations were enacted to give effect to the Habitats Directive. See: [37], [68] and [81]. As such, the EU norm continued to have an indirect role in the interpretation of the domestic norm as an external aid to the construction, just as in E-Accounting at [13] and [109] (as discussed here).
The Supreme Court has confirmed this approach. Lord Sales (giving the unanimous judgment of the Court) held that the Court of Appeal was “right to conclude” that this interpretation was required by the application of “ordinary” and “conventional” domestic principles of statutory interpretation without it being necessary to refer to principles of interpretation in EU law ([44] and [59)].
Accordingly, it was correct to take into account the “historical context” which led to the enactment of the Habitats Regulations, including that it was the intention of such Regulations to give effect in domestic law to the regime set out in the Habitats Directive ([47]). In particular, Lord Sales noted, at [51], that “[t]he purpose of the Habitats Regulations is to implement and follow the Habitats Directive in pursuing the same objective. Brexit has made no difference to this. There is nothing in the Withdrawal Act which affects the application of ordinary domestic law principles of interpretation so far as the Habitats Regulations are concerned”.
This enabled the Court to look at both the “object” and the “terms” of that Directive, including its recitals ([47]-[49]). Of particular note, it also enabled the Court to consider the European case law’s interpretation of the Directive ([50]). In the latter regard, Lord Sales noted, at [59], that “[t]he points made in the judgments of the CJEU and the domestic courts referred to above are relevant because they serve to emphasise the purposes promoted by the Habitats Directive and the Habitats Regulations, which are already clear from the terms and context of those instruments”.
It is particularly interesting that the Court adopted this mode of interpretation (in particular by reference to CJEU cases) without recourse to section 6 of the EU (Withdrawal) Act 2018. This is despite the acknowledgement, at [2] and [14] of the judgment, that the Habitats Regulations constitute retained EU law (now assimilated law). Indeed, Lord Sales reiterated on two occasions that, unlike the Court of Appeal, he was not applying the EU (Withdrawal) Act 2018. First, at [51] (quoted above), he stated that Brexit “has made no difference” to ordinary principles of domestic interpretation and that there is “nothing” in the EU (Withdrawal) Act 2018 which “affects” the application of ordinary domestic law principles of interpretation. Second, he reiterated, at [51] and [59], that “it is not necessary” to examine the EU (Withdrawal) Act 2018 at all.
This is somewhat curious given that section 6(3) of the 2018 Act requires the meaning of assimilated law to be decided in accordance with assimilated case law (including CJEU judgments decided prior to Brexit), and section 6(2) enables the court to have regard to CJEU judgments decided after Brexit. Given that the Court’s approach, applying judicial principles, adopts the same approach in practice as those set out in the legislation, the different route by which to arrive at that result may be of no consequence in this case.
I do wonder, however, if it may in another case for two reasons.
First, Lord Sales justified looking at the CJEU case law on the basis that it discussed the purposes of the legislation. But section 6 is not limited to CJEU case law concerning only the purpose of assimilated law. Under section 6 of the 2018 Act, all CJEU case law pre Brexit is relevant (including CJEU case law post-dating the domestic implementation and case law going beyond looking at the purpose of the norm).
Second, I wonder if the role of purposive interpretation is being stretched by including within that concept a Parliamentary intention to apply future case-law. It is one thing to say, as the Court of Appeal did, that a purposive interpretation permits taking into account the originating EU norm itself insofar as Parliament can be shown, or taken, to have intended to incorporate that norm domestically. It is quite another thing to say, however, that there is an intention to read both the domestic and EU norm in light of its purpose as interpreted by subsequent EU case law.
If the role (applying ordinary domestic principles of domestic interpretation to the construction of domestic legislation) is to determine the meaning of words taking into account the purpose of that domestic law, then, it might be argued, European case law post-dating the domestic implementing law concerning the meaning of the European originating norm is irrelevant. How could the domestic legislator have had regard to such case law? And what if that CJEU case law, applying distinct European principles of interpretation, takes an avowedly different approach to that which the domestic legislator had expected or understood the EU law to mean at the time of transposition? In that case, although the domestic legislator may have intended to implement the European norm (and so it makes sense to refer to that norm), would the domestic interpretative approach really be capable of being stretched to have regard to that subsequent CJEU case law as a matter of general Parliamentary intention?
Under section 6 of the 2018 Act, these sorts of questions are irrelevant. Under the purposive approach to construction, however, it might be argued that they are of potential relevance.
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