The European Union (Withdrawal) Bill (the “Repeal Bill”) sets out, among other things, the future relationship between courts in the United Kingdom and EU law, including EU court decisions. UK courts will continue to be bound by EU laws and court decisions made before Brexit, except for the Supreme Court. In some cases, this will apply even to UK laws made after Brexit. Curiously, the Repeal Bill does not state this in so many words – instead it uses a series of circumlocutions which avoid a clear statement that UK courts remain bound by decisions of the Court of Justice of the European Union (CJEU).
The Repeal Bill incorporates EU law into UK domestic law on the date of Brexit. The corpus of EU law is ‘frozen’ on Brexit and then evolves in accordance with UK legislation and case law, so that it may gradually diverge from EU law. We highlight below two areas where this may cause difficulty.
UK courts after Brexit
The Repeal Bill states that UK courts are not bound by any EU law or court decision made after Brexit, although they are permitted to have regard to them. The Repeal Bill also states that questions as to the validity, meaning or effect of retained EU law shall be decided in accordance with CJEU decisions before Brexit, except that the Supreme Court is not bound by those decisions. In particular, the Supreme Court, in deciding whether to depart from previous CJEU decisions, will give them the same status as its own prior decisions.
The effect of all these provisions is that CJEU decisions made before Brexit will continue to bind UK courts with a similar status to UK Supreme Court decisions. What the convoluted description of the status of CJEU decisions in the Repeal Bill does not do is simply state that UK courts (except the Supreme Court) will continue to be bound by CJEU decisions made before Brexit.
UK legislation after Brexit
UK legislation made after Brexit will not be subject to the supremacy of EU law. UK legislation made before Brexit will continue to be subject to the supremacy of EU law, although only EU law as it is frozen on Brexit (see section 5(1)-(2) and Schedule 1, 5(2)).
This leaves a delicate corner case. UK legislation passed after Brexit may modify an EU regulation incorporated into UK law by the Repeal Bill or a piece of domestic UK legislation incorporating EU law. Should UK courts still be bound to interpret the modified UK law in line with EU jurisprudence? Or, more widely, any piece of UK legislation that is interpreted subject to the supremacy of EU law might be amended – perhaps in a very minor way – after Brexit. Should that amendment change the interpretation of the UK legislation, in that it is no longer subject to the supremacy of EU law?
The Repeal Bill answers both these questions the same way: in some circumstances, EU case law or legislation may still prevail. The test is whether the continuing application of EU law is “consistent with the intention of the modifications” (see ss.5(3) and 6(6)). This allows minor amendments to legislation to be made without unintentionally radically changing its interpretation by bringing it outside the scope of EU law. However, it may be controversial in that it subjects UK legislation post-Brexit to EU jurisprudence and it does so on the basis of a test that may be difficult to apply consistently.
The Repeal Bill appears to have been drafted to avoid emphasising the fact that, even after Brexit, UK courts will continue to be bound by CJEU judgments made before Brexit. Even some UK legislation passed after Brexit will be subject to the supremacy of EU law, although legislators can always prevent this simply by expressing a contrary intention.