Clause 26: Interpretation of retained EU law and relevant separation agreement law
This clause defines the term ‘relevant separation agreement law’ and provides for rules of interpretation in order to ensure that as far as they are applicable, that body of law is interpreted in accordance with the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. It also allows for a Minister of the Crown, acting after consultation, to provide regulations on how UK courts can interpret retained EU law, including providing for the circumstances under which relevant courts or tribunals are not bound by retained EU case law. The regulations may also set the test that is to be applied in deciding whether to depart from such retained EU case law. The regulations may, however, provide that the test may be determined by a given list of members of the judiciary.
288 Subsection (1) amends section 6 of the EU (Withdrawal) Act 2018 on the interpretation of retained EU law. Specifically:
a. subsection (1)(a) substitutes references to ‘exit day’ to ‘IP completion day’, so that retained EU law, and its accompanying rules of interpretation, come into force on IP completion day;
b. subsection (1)(b) inserts a new subsection (4)(ba) which provides that a relevant court or relevant tribunal is not bound by any retained EU case law to the extent that this is provided for by regulations made under subsection (5A);
c. subsection (1)(c) amends subsection (5) to clarify the test that the Supreme Court and High Court of Justiciary must apply when departing from retained EU case law (the same test it must apply when deciding whether to depart from its own case law.
d. subsection (1)(d) inserts new subsections (5A) to (5D) into section 6.
e. New subsection (5A) gives a Minister of the Crown the power to make regulations which:
i. provide that a court or tribunal is a relevant court or tribunal for the purposes of the section;
ii. set out the extent to which, or circumstances in which, a relevant court or relevant tribunal is not to be bound by retained EU case law;
iii. set out the test that the court or tribunal must apply in deciding whether to depart from any retained EU case law; or
iv. provide for considerations which are relevant to the test that the Supreme Court or High Court of Justiciary will apply in accordance with subsection (5) or a relevant court of tribunal apply by virtue of the regulations.
f. New subsection (5B) provides a non exhaustive list of what the regulations may include:
i. that the High Court of Justiciary may be a relevant court when sitting for a purpose other than mentioned in subsection 4(b)(i) and (ii);
ii. the extent to which, or circumstances in which, a relevant court or tribunal not being bound by retained EU case law includes, or otherwise, that court or tribunal also not being bound by retained domestic case law which relates to retained EU case law;
iii. other matters arising in relation to retained domestic case law that relates to retained EU case law;
iv. the test or considerations to be determined by one of the named members of the judiciary under subsection (5C)(a) to (e) (either alone or acting jointly). The regulations may also provide whether that determination is to be made with or without the consent of a Minister of the Crown.
g. New subsection (5C) places an obligation on the Minister when making regulations to consult with a defined list of members of the judiciary, as well as other persons as that Minister considers appropriate.
h. New subsection (5D) provides that the regulations made under subsection (5A) must not be made after IP completion day;
f. Subsection (e) inserts a new subsection 6A into the EU (Withdrawal) Act 2018 which provides that the rules on interpretation of retained EU law in section 6 (1) to (6) of the EU (Withdrawal) Act 2018 are subject to relevant separation agreement law for which the rules of interpretation are set out in new section 7C of the EU (Withdrawal) Act 2018.
Subsection (2) inserts a new section 7C after new section 7B of the EU (Withdrawal) Act 2018.
New section 7C(1)(a) states that any question concerning the validity, meaning or effect of any relevant separation agreement law is to be decided in accordance with the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (so far as they are applicable to it). New section 7C(1)(b) provides that regard should be had to the desirability of ensuring that the effect of relevant separation agreement law in relation to matters dealt with by corresponding provisions amongst the Agreements is consistent.
291 New section 7C(2) is a signpost to relevant provisions of each of the Agreements regarding the interpretation of ‘relevant separation agreement law’.
292 New section 7C(3) defines ‘relevant separation agreement law’. This includes domestic provisions implementing the Agreements and anything which is domestic law by virtue of those provisions (subsection (a) - either because it flows into domestic law by virtue of the new section 7A and 7B conduit pipes or is made in exercise of the powers listed in new section 7C(3)(a) - and anything else which is domestic law for the purposes of, or otherwise within the scope of the Agreements (subsection (b)), with the exception of Part 4 of the Withdrawal Agreement, which is legislated for separately (that legislation being repealed, in the main, on IP completion day).