Interpreting the law after Brexit

This is one of the most striking changes made to the European Union (Withdrawal Agreement) Bill 2019-20 (WAB) since the election. The addition of clause 26 grants ministers powers to determine which courts should be able to overturn existing decisions on interpreting EU law and the test that should be applied.

Decisions of EU courts up to the end of the transition or implementation period (31 December 2020, if not otherwise extended) are to be imported into English law as “retained EU caselaw”, so that EU law carried onto the UK statute book will continue to be interpreted as it has been previously. The previous, October 2019, version of the WAB provided that only the Supreme Court could overturn retained EU caselaw, but with the new clause 26, the Government now endorses the possibility of lower courts reinterpreting EU law.

If this were to happen, challenges to previous CJEU decisions would be encouraged, as there would be no need to take a case through the lower courts and on to the Supreme Court, which is costly and time-consuming. This provision therefore represents an example of the Government’s increased confidence in encouraging quicker and more radical divergence from EU law.

Of course, the WAB is not yet law and there is opposition to this provision. The House of Lords Constitution Committee called the ministerial powers granted by clause 26 “inappropriate” and called for their removal in a report published on 14 January 2020. The report concluded that the proposal that ministers would need to consult with senior judges before using clause 26 was an inadequate check on powers that could lead to substantial changes in the law without parliamentary scrutiny. On 20 January 2020 the House of Lords voted to remove clause 26, but this is expected to be reversed in the House of Commons.

Clause 26 of the WAB is worth watching: an ability for lower courts to overturn the established interpretation of laws that will be on the UK statute book could lead to swifter and less predictable changes in the law. For parties keen to see the divergence of English law from EU law, it could represent an opportunity to change the law through litigation.

If you have any questions on the implications of the UK’s withdrawal from the EU and its impact on English law, both during and after the transition period, please contact Charles Bankes.