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Retained EU Law Act 2023

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Last updated 9th July 2023 (part update 22nd June, 2024).

This Act, as yet (until October 2024) only partly in force, is altering the position of EU law in Britain. It creates uncertainty, and may well reduce Equality Act protection in certain areas. However regulations preserve some parts of EU case law on the Equality Act.

REUL Act in summary

The Act

The Retained EU Law (Revocation and Reform) Act 2023 (legislation.gov.uk) (REUL Act) received royal assent at the end of June 2023. Not all of its provisions are in force yet. It was sometimes informally known as the Brexit Freedoms Bill.

Much of the REUL was brought into force from 1st January 2024, by reg 3, SI 2023/1363.

Before the REUL Act

Before the REUL Act took effect, UK courts were normally (though not always) required to continue to interpret the Equality Act (EqA) in line with the relevant EU directive and pre-2021 EU Court decisions, in order to preserve legal certainty after Brexit. See Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023. It seems that this (largely) included the courts being required to depart from the words of the EqA where necessary to comply with EU law, under the Marleasing principle.

This may well continue to be the position where the alleged discrimination happened before 1st January 2024, but the position is unclear: see Effect of EU law when interpreting Equality Act, from 2024>If discrimination happened before the end of 2023.

From 1st January, 2024

From that date, the REUL Act largely abolished in Britain the supremacy of EU law (so far as it still remained), and general principles of EU law: Effect of EU law when interpreting Equality Act, from 2024>Supremacy of EU law ended on 31st December, 2023.

What effect does this have on disability discrimination rights under the EqA? In brief:

From 1st October 2024

When brought into force from October 2024 (SI 714/2024), s.6 REUL Act on when higher courts in the UK can depart from EU Court decisions may encourage higher courts to depart from EU case law more often, potentially reducing protection under the EqA, and creating greater uncertainty. S.6 also has new mechanisms to refer these questions to higher courts, creating delays. Below Easier for UK higher courts to override EU cases, and referral system.

Easier for UK higher courts to override EU cases, and referral system (from October 2024)

The current position on British courts following EU case law is discussed at: Effect of EU law when interpreting Equality Act, from 2024>Pre-2021 EU case law will “normally” still apply.

Under the REUL Act, as at present, only the Supreme Court, Court of Appeal and equivalent “higher” courts will have power to depart from pre-2021 EU court decisions. However, when s.6 REUL Act comes into force, ie from 1st October 2024 (under SI 714/2024):

Lower court cases may be delayed while the issue of whether to follow EU case law is referred to higher courts. These courts may be struggling to deal with a large number of such referrals on different pieces of legislation.

Link: The role of the courts regarding assimilated law from October 2024 (eurelationslaw.com, June 2024.

When changes take effect

These changes are bought into effect from 1st October 2024 by The Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 2 and Saving Provisions) Regulations 2024, SI 714/2024.

As regards the new tests on whether higher courts should depart from EU case law (and provisions on interventions by law officers), there are exceptions from the 1st October 2024 date in regulation 3, for example if leave to appeal was given before that date. However, it may well be that apart from regulation 3, the changes in s.6 REUL Act apply from October 2024 even where facts giving rise to the claim happened before 1st October 2024. So it seems possible that from 1st October 2024 (subject to reg 3) the more relaxed tests for whether higher courts can depart from pre-2021 EU case law may apply even if the claim arose before the end of 2023, when the supremacy of (pre-2021) EU law still applied? See further Brexit: Effect of EU law when interpreting Equality Act, from 2024>If discrimination happened before the end of 2023.

Test for higher courts to depart from EU cases

The current rule in s.6(5) EU (Withdrawal) Act 2018 and regulations is that in deciding whether to follow pre-2021 EU Court decisions, the Supreme Court and Court of Appeal must apply the same test as the Supreme Court would apply in deciding whether to depart from its own case law. This seems to mean that while treating EU Court decisions as “normally binding”, they can depart from the EU decision “when it appears right to do so”: more Brexit: Effect of EU law when interpreting Equality Act from 2021>What test is applied in deciding whether to depart from EU Court decisions?

S.6(3) REUL Act will – when in force from October 2024 – repeal that test of whether to follow pre-2021 EU Court decisions. S.6 EU (Withdrawal) Act 2018 will be amended so that it states certain factors to which a higher court – the Supreme Court, Court of Appeal and equivalent courts – must “(among other things)” have regard in deciding whether to follow those EU Court decisions —

  1. the fact that decisions of a foreign court are not (unless otherwise provided) binding [Note: Even now, before the REUL Act is in force, s.6(4) and regulations say that the Supreme Court and Court of Appeal are not bound by pre-2021 EU Court decisions.];
  2. any changes of circumstances which are relevant to the EU case law; and
  3. the extent to which the EU case law restricts the proper development of domestic law.

Test for higher court to depart from own EU-related case law

S.6(4) REUL Act 2023 will also amend s.6 of the 2018 Act (by adding s.6(5ZA)) to say that a higher court can depart from its own previous case law if it considers it right to do so, having regard (among other things) to factors 2 and 3 above plus a different factor in place of 1.

So this will somewhat relax the ability of the Court of Appeal (which is bound by its own previous decisions subject to limited exceptions) and the Supreme Court (which “normally” follows its own previous decisions) to depart from its own pre-2021 decisions related to EU law.

Effect of different test

Will these changes make it more likely that higher courts in Britain will depart from pre-2021 EU-related case law? Probably to some extent, but we don’t know how much. The change is clearly intended to make it less likely that higher courts follow EU-related decisions, which creates greater uncertainty until higher courts decide the issue. As well as the uncertainty, not following EU-related decisions will almost certainly reduce protection under the EqA. Under the REUL Act, the EU (Withdrawal) Act 2018 will no longer effectively state that those EU decisions should “normally” be followed. However, how far the UK courts do follow them will depend on what approach the higher courts take to the revised test.

In particular, it is unclear what approach the courts will take, given the abolition of the supremacy of EU law, where before Brexit the British courts used EU law to depart from the wording of the EqA under the Marleasing principle: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.

There is discussion of the effect the new test may have towards the end of Clearing up when the Courts will depart from retained EU case law (eurelationslaw.com), 13 December 2023.

Northern Ireland

In Northern Ireland the Windsor Framework has effect in domestic law, under s.7A EU (Withdrawal Act) 2018, so courts in Northern Ireland cases may well give much more weight to EU law and EU court decisions than is required by the rules for the rest of the UK: Brexit: disability discrimination in Northern Ireland>Rights etc under Windsor Framework are part of UK law.

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