In this post, Jack Williams of Monckton Chambers provides an update on section 6 of the Retained EU Law (Revocation and Reform) Act 2023 concerning the role of courts in interpreting and departing from assimilated case law.
Section 6 of the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”) will, once in force, make amendments to section 6 of the EU (Withdrawal) Act 2018 (“EUWA”). Most notably:
- the test for departing from assimilated case law will be modified to provide a gentle nudge to the courts to depart more readily;
- the courts which can depart from assimilated case law will be defined in statute, rather than secondary legislation;
- the test for departure from assimilated case law in section 6 of the EUWA (as amended) is disapplied for competition law cases; it is 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 will be 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 are enacted for when higher courts are considering departing from assimilated case law.
Section 6 of the REULA was not, unlike the rest of the REULA’s provisions, brought into force by 1 January 2024 by the first commencement regulations under the Act, namely the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 1) Regulations 2023 (SI 2023/1363).
This position is set to change on 1 October 2024. The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) Regulations 2024 (SI 2024/714) provide that section 6 comes into force on 1 October 2024. These Regulations survived the legislative “wash-up” prior to the dissolution of Parliament.
It must be noted, however, that regulation 3 provides that the new test for departure from assimilated case law and the right of the law officers to intervene do not apply to those cases where, before 1 October 2024, an appeal to the higher court: (a) lay as of right; (b) lay or was referred by way of case stated; (c) was granted leave or permission; or (d) was commenced by any other originating process.
The temporal effects of these two aspects of the amended section 6 of the EUWA will thus generally be limited to prospective situations as a result (it will be recalled that, as procedural provisions and ones not expressly specified in section 22 of the REULA to have only prospective effect, the entirety of section 6 of the REULA (and the amended section 6 of the EWUA) would otherwise have been capable of retrospective effect).
The procedures to enable the operation of the domestic reference and intervention powers (in what will be the new sections 6A-C of the EUWA once section 6 of the REULA is commenced) are not yet known. However, change is clearly coming.
Firstly, the minutes of Civil Procedure Rules Committee meeting on 12 April 2024 suggest that a new CPR Part 68 (Proceedings Under the European Union (Withdrawal) Act 2018) will be published in July and come into force as part of the October 2024 commencement cycle
Secondly, the Supreme Court’s recent consultation on proposed revisions to its rules of procedure also include relevant draft rules (see rules 46 and 48-49). In respect of references on assimilated case law, those draft rules specify three steps for making a reference to the Supreme Court:
Step 1 – a reference: “A reference …must— (a) state the question to be determined on one or more points of law which arise on the assimilated case law of the Court; (b) set out the referring court or tribunal’s reasons for considering the point of law to be of general public importance; and (c) describe the relevance of the point of law to the proceedings before the referring court or tribunal.”
Step 2 – submissions: written submissions by the parties within 21 days of the reference.
Step 3 – determination : determination by the court on the papers.
The levels of anticipation and excitement for receipt of a new White Book later in the year increase yet further…
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