Since Brexit, EU-derived law, previously known as retained EU law, has been governed by the European Union (Withdrawal) Act 2018 (EUWA). EUWA allowed UK courts to continue interpreting EU-derived law in line with pre-Brexit Court of Justice of the European Union (CJEU) case law, unless a higher UK court chose to depart from it. However, EU laws and precedents made after Brexit are no longer binding on UK courts. This body of law has since been termed assimilated law. This term reflects post-Brexit reforms aimed at gradually reducing the influence of EU law whilst maintaining legal continuity in key areas.
Originally, section 6 of REULA was scheduled to come into force on 1 October 2024. This provision was designed by the previous Government to make it easier for UK courts to depart from pre-Brexit CJEU case law when interpreting UK law derived from the EU. It also introduced new processes for lower courts to refer legal questions to higher courts and for law officers to intervene in higher court proceedings. However, the new Government has now shelved section 6 indefinitely. Its actions have raised questions about its Brexit strategy and its future relationship with the EU.
In a letter dated 26 September 2024, Chris Carr, the Director of Regulation at the Department for Business and Trade, explained that the Government intends to reconsider section 6 as part of its efforts to "reset UK relations with the EU". The letter also clarified that while section 6 is currently shelved, the government may reintroduce it in the future.
The revocation of section 6 does not affect the current powers of higher UK courts, which can already depart from assimilated EU case law under EUWA. Higher courts, including the Supreme Court, can treat pre-2021 CJEU precedents as “normally binding” but have the discretion to depart from them “where it appears right to do so”. Lower courts remain bound by CJEU case law unless the higher courts depart from it.
Should section 6 ever be enacted, it would introduce a greater possibility for courts to depart from existing case law, potentially leading to increased litigation as parties challenge long-standing EU precedents. For now, however, things will remain as they are as talks with the EU about future relations continue.
We will continue to report on developments.