This blog post, written by David Gregory and Khatija Hafesji of Monckton Chambers, defines the statutory concept of retained EU case law under the European Union (Withdrawal) Act 2018 and identifies the test that certain UK courts may now apply in order to depart from it, namely that applied by the Supreme Court in departing from its own precedents. The discretion has historically been applied sparingly, principally for reasons of legal certainty. The same considerations are likely to limit the use of this new power, however possibly not to the same extent. It is unknown if domestic courts will treat it as inherently undesirable for UK and EU law to diverge.
Continue reading “Domestic courts’ new powers to depart from pre-Brexit case law”Domestic courts’ new powers to depart from pre-Brexit case law
