The European Union (Withdrawal Agreement) Bill Briefing on allowing lower courts to depart from CJEU case law (clause 26(1)(b-d))

The Public Law Project and ClientEarth oppose clause 26(1)(b-d) of the European Union (Withdrawal Agreement) Bill, arguing that allowing lower courts to depart from Court of Justice of the European Union (CJEU) case law undermines legal certainty. They contend that such power creates unpredictability for businesses and individuals and risks a proliferation of inconsistent legal decisions, advocating instead for the authority to depart from EU case law to remain with Parliament and the UK's highest courts.

• Clause 26(1)(b-d) of the European Union (Withdrawal Agreement) Bill (WAB) proposes to give ministers the power to create regulations that allow specific lower courts and tribunals to deviate from retained EU case law established before exit day. This includes the power for a minister to define the test and relevant considerations a court must use when deciding to depart from such case law.
• The briefing argues that allowing lower courts to depart from CJEU case law creates uncertainty for individuals and businesses who have relied on long-standing rules, such as those governing VAT and holiday pay entitlements.
• There is a risk that granting lower courts the ability to ignore existing CJEU case law will lead to a proliferation of conflicting decisions on the same legal points, as lower court decisions are not always reported or binding on other tribunals.
• The authors support Amendment 49 (referred to also as Amendment 492), which would delete these provisions to ensure that the authority to depart from EU case law remains with Parliament or the Supreme Court, thereby maximizing legal certainty.

APA

ClientEarth (2020). The European Union (Withdrawal Agreement) Bill Briefing on allowing lower courts to depart from CJEU case law (clause 26(1)(b-d)). https://www.clientearth.org/media/yxsgcp0t/plp-and-clientearth-joint-briefing-on-clause-26-of-wab-coll-en.pdf

Chicago

ClientEarth. The European Union (Withdrawal Agreement) Bill Briefing on allowing lower courts to depart from CJEU case law (clause 26(1)(b-d)). 2020. https://www.clientearth.org/media/yxsgcp0t/plp-and-clientearth-joint-briefing-on-clause-26-of-wab-coll-en.pdf.

Wikipedia

{{cite report |author=ClientEarth |title=The European Union (Withdrawal Agreement) Bill Briefing on allowing lower courts to depart from CJEU case law (clause 26(1)(b-d)) |date=8 January 2020 |url=https://www.clientearth.org/media/yxsgcp0t/plp-and-clientearth-joint-briefing-on-clause-26-of-wab-coll-en.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{clientearth2020european, author = {{ClientEarth}}, title = {{The European Union (Withdrawal Agreement) Bill Briefing on allowing lower courts to depart from CJEU case law (clause 26(1)(b-d))}}, institution = {ClientEarth}, year = {2020}, month = jan, url = {https://www.clientearth.org/media/yxsgcp0t/plp-and-clientearth-joint-briefing-on-clause-26-of-wab-coll-en.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }