Retained EU case law consultation

The CIOT has also responded to the Ministry of Justice consultation on retained EU caselaw; specifically, the consultation considers the principle of which courts and tribunals will be able to depart from retained EU caselaw after the end of the implementation period. The original principle envisaged by the UK government was that only the UK Supreme Court and High Court of Justiciary in Scotland would have such power.

In principle, the CIOT agrees that the power to depart from retained EU case law should be extended to other courts and tribunals in order to provide access to justice, and distribute the burdens on the courts across a wider base.

The CIOT suggests that extending the power to the Court of Appeal (Option 1 in the MoJ consultation paper), with a right to ‘leap frog’ from lower courts direct to the Court of Appeal in appropriate circumstances would provide the best balance of enabling timely departure from retained EU caselaw while maintaining legal certainty across the UK.

The CIOT considers, however, that it would be unhelpful to allow the courts and tribunals to depart from retained domestic caselaw (ie principles and decisions laid down by UK courts and tribunals before the end of the transition period in relation to EU law which is retained under the EU (Withdrawal) Act 2018), noting that the policy objective here is unclear.