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Lower courts being able to depart from retained EU caselaw

mycatismo
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Housing Systems, Leeds

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Total Posts: 140

Joined: 23 June 2010

Just wondering if people have any opinions on whether Clause 26(1) in the Withdrawal Bill might impact on any benefit regulations, ie on the caselaw that currently interprets them..
As far as I understand it’s all to do with courts lower than currently (Supreme Court) being able to depart from CJEU caselaw in laws that remain after the transition period. And this sounds worrying, in 361 below: “regulations made under subsection 5A may make provision for the extent to which (or the circumstances in which) relevant courts and tribunals not being bound by retained EU case law also means that those same courts are not bound by retained domestic case law which relates to retained EU case law. ”

I suspect I may be worrying unnecessarily, having completely misunderstood what it’s all about!

This is what it says in The EU Withdrawal Agreement Bill Memorandum
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/854227/EU__Withdrawal_Agreement__Bill_-_Delegated_Powers_Memorandum.pdf

“359. The Bill provides that other relevant courts and tribunals may not be bound by
retained EU case law so far as is provided for in regulations. The Bill therefore creates
a new power, by way of an amendment to section 6 of the EU (Withdrawal) Act 2018,
so as to enable a Minister of the Crown to make regulations to provide for the
following matters:
a. specifying which courts or tribunals will be “relevant courts” or “relevant
tribunals” for the purpose of section 6(4)(ba);
b. the extent to which, or the circumstances in which, a relevant court/tribunal
will not be bound by retained EU case law;
c. the test which relevant courts and relevant tribunals will need to apply when
deciding whether to depart from retained EU case law;
d. the considerations which are to be relevant to (a) the Supreme Court or the
High Court of Justiciary in applying the existing test at section 6(5) of the EU
(Withdrawal) Act 2018 when deciding whether to depart from any retained EU
case law or (b) a relevant court or relevant tribunal in applying any test when
deciding whether to depart from any retained case law, as may be provided for
by the regulations.
360. Regulations may alternatively enable named members of the judiciary to determine the
test (and the relevant considerations to apply to it) in deciding whether to depart from
any retained EU law (5B(d)). They may do this alone or acting jointly. Further, the
regulations may provide whether this is done with or without the consent of a Minister
of the Crown.
361. The clause also provides that the regulations may (among other things) make
provision for other matters. These include the circumstances in which the High Court
of Justiciary may be a relevant court when sitting, in addition to that which is already
provided for in section 6(4)(b)(i) and (ii) of the EU (Withdrawal) Act 2018. It also
provides that the regulations made under subsection 5A may make provision for the
extent to which (or the circumstances in which) relevant courts and tribunals not being
bound by retained EU case law also means that those same courts are not bound by
retained domestic case law which relates to retained EU case law. Finally the
regulations may make provision for other matters arising in relation to retained
domestic case law which relates to retained EU case law.
362. Before regulations under subsection 5A are made, there is an obligation on a Minister
of the Crown to consult with both a defined list of members of the judiciary, and with
such other persons as the Minister of the Crown considers appropriate.

Ros
Administrator

editor, rightsnet.org.uk

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Joined: 6 June 2010

I agree that it is potentially significant - as you rightly say, gives Ministers, including DWP Ministers, power to make regulations specifying to what extent, and circumstances in which, tribunals and lower courts should depart from existing CJEU case law.