European Union (Withdrawal) Act 2018

Section 6: Interpretation of retained EU law

109. Section 6 sets out how retained EU law is to be read and interpreted on and after exit day.
110. Subsections (1) and (2) set out the relationship between the CJEU and domestic courts and tribunals after exit. These subsections provide that:
     • decisions of the CJEU made after exit day will not be binding on domestic (UK) courts and tribunals;
     • domestic courts cannot refer cases to the CJEU on or after exit day; and
     • domestic courts and tribunals are able to have regard to actions of the EU taken post-exit, including CJEU decisions, where they are relevant to any matter the court or tribunal is considering . This ability is, however, limited by the other provisions in this section - so, for example, although a court may have regard to post-exit CJEU decisions, it cannot have regard to such an extent it considers itself bound by them (as this is ruled out by subsection (1)).
111. Subsection (3) provides that any question as to the meaning of unmodified retained EU law will be determined in UK courts in accordance with relevant pre-exit CJEU case law and general principles. This means, for example, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant materials such as the treaty legal base for a measure, its recitals and preambles, and the travaux preparatoires (working papers) leading to the adoption of the measure). It also means applying an interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law. Non-binding instruments, such as recommendations and opinions, would still be available to a court to assist with interpretation of retained EU law after exit.
112. UK courts will also be required to interpret retained EU law by reference to (among other things) the limits of EU competence, as it exists on the day the UK leaves the EU. Article 5(2) TEU confirms that the Union could only act within the limits of the competences conferred upon it by the member states. Competences not conferred upon the Union remain with the member states. For example, Article 4(2) TEU provides that, amongst other matters, the maintenance of law and order and safeguarding national security matters have not been conferred on the EU and remain with member states. 1
113. Subsections (4) and (5) set out that, unlike other courts, the UK Supreme Court (UKSC) and the High Court of Justiciary (HCJ) are not bound by either retained general principles or retained CJEU case law. The HCJ is the highest criminal court in Scotland from which there is no right of further appeal to the UKSC, except in respect of certain matters set out in subsection (4)(b)(i). After exit day, retained CJEU case law will have the same binding, or precedent, status in domestic courts and tribunals as existing decisions of the UKSC or HCJ. This means that the UKSC (and, except where there is a further appeal to the UKSC, the HCJ) will be able to choose to depart from previous CJEU case law.
114. Subsection (2) is subject to the rest of section 6. This means that, although all courts can have regard to post-exit CJEU decisions, unless and until the UKSC or HCJ have departed from pre-exit CJEU case law, the latter remains binding on lower courts even if the CJEU has departed from it after exit day.
115. In choosing whether to depart, the UKSC and the HCJ are required to apply the same tests as they would when considering whether to depart from their own previous decisions. The test the UKSC applies is set out in an existing practice statement which sets out that it may depart from previous decisions ‘where it appears right to do so’. The HCJ will apply its own tests in deciding whether or not to depart from inherited CJEU case law.
116. Subsection (6) sets out that retained EU law which has been amended on or after exit day can be determined in accordance with CJEU case law and the general principles where that accords with the intention of the amendments.
117. Subsection (7) provides definitions of the terminology relevant to this section.