European Union (Withdrawal) Act 2018

Part 2: Rules of evidence

Questions as to meaning of EU instruments

278. Generally, the meaning or effect of the law in other jurisdictions is treated as a question of fact, to be proved in legal proceedings by evidence, rather than determined by a judge as a question of law. Section 3 of the ECA clarified that, when the UK joined the EU, UK judges were to determine the meaning or effect of the EU Treaties, or the validity, meaning or effect of any EU instrument, as a question of law, in accordance with the principles laid down by and relevant decisions of the CJEU. The EU law which is being retained by the Act will become domestic law, and so fall to be interpreted by judges in this country.
279. Some EU law will not become part of domestic law, but may still be relevant to the interpretation of the retained EU law (for example, a court may have to consider the meaning of an EU directive when interpreting domestic regulations made to implement that directive). Paragraph 3 therefore makes clear that, to the extent that determining the meaning or effect of EU law is necessary for a court to interpret retained EU law, judges will continue to determine that meaning or effect themselves as a question of law, rather than treat it as a question of fact. Paragraph 3 does not make provision as to the consideration of EU law for purposes other than the interpretation of retained EU law. This will be a matter for the courts.

Power to make provision about judicial notice and admissibility

280. Matters which are ‘judicially noticed’ are deemed to already be within the knowledge of the court, and so are not required to be ‘proved’ to the court. For example, public Acts of Parliament and the EU Treaties are judicially noticed.1 Paragraph 4 provides that a Minister of the Crown can make regulations which provide for judicial notice to be taken of a relevant matter, and for the admissibility in legal proceedings of evidence of both a relevant matter and instruments and documents issued by or in the custody of an EU entity, to ensure that appropriate evidential rules can be put in place to reflect the new legal landscape after exit.
281. Sub-paragraph (2) of paragraph 4 provides that regulations made under sub-paragraph (1) may require that certain conditions must be fulfilled (such as conditions regarding certification) before any evidential rules are satisfied.
282. Sub-paragraphs (3) and (4) enable regulations providing for evidential rules to modify legislation which is passed or made before the end of the Session in which this Act is passed. This is to ensure that any new rules can properly sit alongside existing evidential provisions in other enactments.
283. Sub-paragraph (5) defines what the ‘relevant matters’ are in respect of which regulations can be made under this paragraph, being retained EU law, EU law, the EEA Agreement, or anything specified in the regulations which relates to those matters.
284. Under paragraph 13 of Schedule 7, a statutory instrument containing regulations made under this power will be subject to the affirmative procedure.