UK Govt response to consultation over whether to exercise statutory powers to make regulations for courts other than the UK Supreme Court & High Court of Justiciary to be able to depart from retained EU case law

Short thread: 1/7

#brexit

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/926811/departure-eu-case-law-uk-courts-tribunals-consultation-response.pdf#page6

2. They conclude that such powers should be extended, but only to the Court of Appeal of Eng & Wales, the CoA of Northern Ireland, Inner House or equivalent. Lower courts/of first instance would not have that power.

3. The test would be the same test used by the UK Supreme Court (or for Scots Criminal cases, the High Court of Justiciary). Extra Factors would not be specified by statute (or statutory instrument).

4. Not quite clear how CoA would apply the UKSC test for departing from precedents - whether it is appears right to do so, bearing in mind various factors. Would this be the CoA asking itself it was right for the CoA so to depart, or “if this case reached the UKSC?”

5. Govt also conclude that “it is not desirable for courts with the power to depart from retained EU law to be able also to depart from retained domestic case law and that development of such law should be governed by the existing rules of precedent.”

6. That is welcome in one sense, in that it limits potential for greater uncertainty. But there will be relatively few controversial areas of retained EU Law where there is not also retained domestic case law on the point, surely? Perhaps very recent decisions?

7. Overall, the Govt conclusions are probably the most limited intrusion that could have been expected given the intention to do something in this area, but still scope for instability to be generated & not obvious specifically what areas are thought to be the problem.

Sorry and 8. One further point, not, I think mentioned - presumably there could be an appeal to the UKSC *after* (eg) the CoA had departed from a retained EU decision? What would be the position in the interim?

9. Hard not to think that the provision for, and exercise of, the power is performative - to be seen to be doing something - rather than designed to address genuine issues.