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Chaos looms if EU case law is abandoned after Brexit

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As the UK moves ever closer to the end of the Brexit transition period on the 31st December, responses to a recent Ministry of Justice (MOJ) consultation has highlighted the potential for legal chaos if the High Court, Appeal Court and Supreme Court abandon current EU case law.

The wording of the original European Union (Withdrawal) Act 2018 includes provision for continuity with EU case law already in the system, meaning that such laws would become domestic UK law. Only the Supreme Court and Court of High Court of Judiciary in Scotland were granted the power to depart from retained EU case law. Following 2019’s general election, however, the latest European Union (Withdrawal Agreement) Act 2020 changed the terms of the 2018 Act to allow ministers to make regulations extending the power to more courts.

In response to the MOJ consultation regarding the proposed extended powers, the Law Society argued that the power should be confined to the Supreme Court to avoid a “radical change within the administration of UK justice” resulting in “unforeseen consequences and undesired outcomes”, adding that any extension of these powers to other courts would “result in a lack of legal certainty, through the emergence of novel judgments which are either not binding on other courts or which are inconsistent with precedent”. Expanding upon their concerns, the Law Society added:

This would be most evident in the case the High Court was able to depart from retained EU case law, given the decision of one High Court judge does not bind another but it is also possible in the case of appellate courts from different jurisdictions…It is foreseeable that inconsistencies would consequently emerge, and it would take an appeal to a higher court to provide resolution. Given that many parties often settle their disputes before appeal, it is possible the period of uncertainty could last for some considerable time…It is also possible that lower courts, by departing from case law, may throw the status of previous judgments into question, even those given by more senior courts.”

The society also said any legal uncertainties would have serious implications for the UK and its wider legal sector, as well as individual parties involved. Some decisions of the Court of Justice of the European Union (CJEU) carried “huge legal weight”, and if courts could disapply them the UK legal system could end up with “a range of interpretations”, creating uncertainty which “could take years” to resolve.

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