UK decision on post-Brexit litigation prompts uncertainty

Out-Law News | 20 Oct 2020 | 3:37 pm | 1 min. read

There is likely to be "a surge" in litigation and appeals raised before courts in the UK if proposed new Brexit regulations published by the UK government are introduced into law, a specialist in EU law has said.

The draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020, if enacted, would give greater freedom to the UK's domestic courts to overturn EU case law after the Brexit transition period ends on 31 December 2020.

Most EU legislation will be incorporated into UK law on 31 December, along with the EU case law as to its meaning and effect. This will be achieved under the European Union (Withdrawal) Act 2018, which was intended to provide continuity, clarity and certainty after Brexit from day one. It is expected that, in the years to come, much of this EU legislation will gradually be amended or replaced by domestic legislation passed by the UK parliament.

The new Regulations, published following a consultation over the summer, will allow the Court of Appeal and equivalent courts across the UK to overturn established EU case law. The 2018 Act already grants this power to the UK Supreme Court. Applying a practice statement from 1966, the courts will treat EU case law decisions as "as normally binding, [but] depart from a previous decision when it appears right to do so".

The Lord Chancellor in England and Wales, Robert Buckland QC, said: "Once the transition period is over, it is absolutely right that UK courts have the final say on legal disputes affecting our nation. This move provides legal certainty while ensuring that UK case law can quickly evolve to reflect our new status as an independent country following departure from the EU."

The move has been controversial, though. A majority of responses to the consultation opposed the new Regulations, with only 9% feeling it struck the right balance between the need for legal certainty and the need for flexibility in the development of case law after Brexit.

David Thorneloe of Pinsent Masons, who was formerly head of EU law, legislation and litigation in the UK government's Department for Exiting the EU, said: "This is a marked departure from the continuity and certainty that the European Union (Withdrawal) Act 2018 first provided. We can expect a surge in litigation and appeals to higher courts in the next few years, as litigants roll the dice with speculative attempts to reverse long-established EU case law. It will be more difficult to resolve disputes out of court, if neither side can predict whether a judge will consider it 'right' to apply or overturn the case law."