Consultation launched on post-EU reforms for British courts

Views are being sought from the legal sector, business, and the judiciary on which British courts should have the power to depart from retained EU case law. At present, only the UK Supreme Court and the High Court of Justiciary in Scotland will have this power from 31 December 2020.

Under proposals set out by the Lord Chancellor Robert Buckland, more courts would be given the power to move away from those EU case laws which we retain – such as those concerning our fisheries, borders or taxes. This will enable the law to evolve more flexibly to recognise the UK’s changing status following on from our departure from the EU, as we take back control of our laws.

Following the Transition Period, British judges will be able to reconsider these types of cases in the new context of the UK’s departure from the EU.

Lord Chancellor said:

Since leaving the EU we are no longer bound by European laws, and it is absolutely right that British courts have the final say on legal disputes. 

We will work with judges and the legal sector to decide exactly which courts should have the power to depart from retained EU case law and will set out our plan in due course.

The consultation sets out 2 options to expand the number of UK courts and tribunals that can depart from retained EU law, whilst maintaining legal certainty across the country. The Ministry of Justice will consider extending the powers to either:

• The Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK;
• or, those courts and the High Court of England and Wales, the Outer House of the Court of Session in Scotland, The Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.

The government will continue to work with the devolved assemblies, legal professionals, judges, and business to make sure our legal sector’s world-leading status is maintained and our courts are equipped with the powers they need. 

All responses to the consultation will be carefully considered, with next steps set out in due course. Any change to regulations would require legislation.