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Impact Brexit and Covid on UK NZ Judges’ Conference – 15/16 April 2021 IMPLICATIONS OF BREXIT AND COVID-19 FOR UK LAW New Zealand Senior Courts Judges’ Conference, Tauranga, 15 – 17 April 2021 Lord Sales, Justice of the UK Supreme Court INTRODUCTION 1. It is a great pleasure for me to speak to you today, albeit through virtual means. I have been asked to speak about the implications of Brexit and COVID 19 for the UK’s law and its legal system. These are large subjects, with significant legal consequences that are still unfolding and will continue to do so for years to come. Needless to say, in the time available I will have to focus on specific topics. So in relation to Brexit I will zero in on (i) the role of retained EU law and (ii) how our departure from the EU might strengthen our relationships with other common law jurisdictions. I will then turn to discuss the immediate impacts of COVID-19 on the operation of the UK’s legal system, before considering some of the longer term opportunities it provides in respect of access to justice. 1. THE IMPLICATIONS OF BREXIT FOR UK LAW Introductory comments 2. EU law has been deeply interwoven into the fabric of the UK’s law for decades, and the UK’s departure from the EU was always going to have a significant impact on the country’s legal system. Since the UK’s referendum on whether it should remain part of the EU took place on 23 June 2016, much ink has been spilled on questions of substance and procedure. 3. The various negotiations and agreements between the UK and EU have understandably received the majority of international attention during the last few years. The UK officially left the EU on 31 January 2020 and, from this point onwards, ceased to be a part of the EU’s political institutions. However, the UK generally remained subject to EU law and the decisions of the I am grateful to my judicial assistant, Anisa Kassamali, for her help in preparing this paper. 1 NZ Judges’ Conference – 15/16 April 2021 European Court of Justice (or “the CJEU”) until the expiry of the Transition Period, which ended on 31 December 2020. 4. We are now a few months out of the Transition Period, and I will direct my attention to some of the implications of the Brexit arrangements for UK law going forward. I will concentrate the first part of my discussion on the treatment of retained EU law, particularly decisions from the CJEU, in UK law. Secondly, I will comment briefly on the impact that Brexit might have on the UK’s relationships with other common law jurisdictions such as New Zealand. Role of retained EU law, particularly CJEU decisions 5. Following its departure from the European Union, the UK is technically no longer subject to EU law. However, the reality of the situation is that a large portion of the EU law that previously applied in the UK is effectively still in force in the form of ‘retained EU law’. This is a new category of domestic law created by sections 2 to 4 of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020. The old procedure for references to be made to the CJEU has gone (save only for its retention to a very limited degree in relation to certain defined areas such as citizens’ rights and the Northern Ireland Protocol). Retained EU law is, broadly speaking, a snapshot of the EU law that was in force and applicable in the UK immediately before the end of the Transition Period. Among other things, this includes EU-derived domestic legislation, directly applicable EU legislation, and directly effective EU rights from non-legislative sources such as a right stemming directly from an EU Treaty which has been recognised in the CJEU’s case law. Treaty provisions continue to trump pre-Brexit conflicting legislation, save where the Treaty provisions have been disapplied by the Brexit legislation such as in relation to free movement of goods and persons. This means that several important Treaty provisions, such as that which prescribes equal pay for men and women, continue to have this form of superior status. But post-Brexit statutes can override them. 6. CJEU decisions handed down before the end of the Transition Period thus form part of the UK’s domestic law as part of the body of retained EU law. The status of these decisions in a post-Brexit UK has already been subject to significant change in the legislation. 2 NZ Judges’ Conference – 15/16 April 2021 7. EU (Withdrawal) Act 2018 in its original form proposed that these retained decisions should be treated as though they had been made by domestic ‘courts of last resort’. This meant that they had to be treated as if they were a decision of the UK Supreme Court and, in relation to criminal matters in Scotland, a decision of the High Court of Justiciary. The Supreme Court and High Court of Justiciary would be able to depart from them, subject to the usual rules allowing for this in limited circumstances, but the decisions would have been binding on all other courts. The Supreme Court or the High Court of Justiciary had to “apply the same test as it would apply in deciding whether to depart from its own case law” (section 6(5) EU (Withdrawal) Act 2018 as enacted). 8. This position was amended by the European Union (Withdrawal Agreement Act) 2020. Section 26(1) of the 2020 Act inserted a new section 6(5A) into the 2018 Act. This gave Ministers a time- limited power to make regulations providing for the “extent to which, or circumstances in which, a relevant court or relevant tribunal is not to be bound by retained EU case law” (section 6(5A)(b)) and “the test which a relevant court or relevant tribunal must apply in deciding whether to depart from any retained EU case law” (section 6(5A)(c)). Any such regulations had to be made before the end of the Transition Period. 9. Between July and August 2020, the Government consulted on whether it should use this power and extend the ability to depart from retained EU case law to courts other than the UK Supreme Court and the High Court of Justiciary. Its consultation document set out two options which it considered would “be arguably capable of achieving a balance, between the benefits of extending the number of courts and tribunals with the power to depart from retained EU case law, whilst mitigating the risks to legal clarity and certainty”.1 The first option was to extend the ability to the Court of Appeal in England and Wales, and equivalent courts in other UK jurisdictions. The second option was, in addition, to extend this ability to the High Court in England and Wales, 1 Ministry of Justice, Retained EU Case Law: Consultation on the departure from retained EU case law by UK courts and tribunals (2 July 2020) (web accessible version) available at https://www.gov.uk/government/consultations/departure-from-retained-eu-case-law-by-uk-courts-and-tribunals accessed on 31 March 2021, pp.17 – 18. 3 NZ Judges’ Conference – 15/16 April 2021 and its closest equivalents in other UK jurisdictions. Of the 75 consultation responses that were submitted, the Government said that 56% of respondents were not in favour of extending the power to depart from retained EU case law to courts and tribunals beyond the UK Supreme Court and the High Court of Justiciary in Scotland.2 10. The Government published its consultation response in October 2020, deciding to extend the power as far as the Court of Appeal in England and Wales and equivalent courts in the other jurisdictions.3 The test that these courts have to apply when determining whether to depart from CJEU decisions is the same one that we in the UK Supreme Court apply when deciding whether to depart from our own case law, which is hedged about and intended to be restrictive but is formally framed as ‘whether it appears right to do so’.4 The Government also sought to explain that, by restricting the power to the two levels of appeal court, it would “minimise the risk, identified in the consultation responses, of adverse impacts which may arise out of any legal uncertainty resulting from additional litigation being brought, and the risk of divergence of approach between courts across the UK”.5 It is hoped that allowing the Court of Appeal to diverge from CJEU decisions will mean that the Supreme Court will not be overburdened with the initial task of making appropriate adjustments in the new Brexit environment across the whole legal field. 11. The Lord Chancellor accordingly made appropriate regulations - the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 - which came into force immediately after the end of the Transition Period. 12. Following these developments, the position in post-Brexit UK is that the UK Supreme Court, the Scottish High Court of Justiciary, and the Court of Appeal in England and Wales (as well as its 2 House of Commons Library, Proposal to extend the power of the UK courts to depart from retained EU case law (November 2020) (web accessible version) available at https://lordslibrary.parliament.uk/proposal-to- extend-the-power-of-the-uk-courts-to-depart-from-retained-eu-case-law/ accessed on 31 March 2021. 3 Ministry of Justice, Government response to consultation: Response to the consultation on the departure from retained EU case law by UK courts and tribunals (October 2020) (web accessible version) available at https://www.gov.uk/government/consultations/departure-from-retained-eu-case-law-by-uk-courts-and-tribunals accessed on 31 March 2021.
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