Well no. It doesn’t! This might come as quite a surprise to some. Since the UK had been a member of the EU for nearly 50 years our laws were comprehensively entwined with EU laws and in order to prevent a serious lacuna in the legal system the government enacted the European Union (Withdrawal) Act 2018 (“EU(W)A”). The EU(W)A created the concept of retained law effectively writing EU law wholesale into UK law.

The intention, of course, was that the UK would decide where it wished to create different frameworks and amend the law sequentially to suit the new reality of being outside the EU. However, for so long as EU laws remain imported into UK law there is an issue of how to interpret them. Could the UK courts look at decided cases for the European Court for guidance?

Yes, they absolutely can; it might help just to run through the chronology here. You’ll need to get this right in any question on Public Law and the EU. The UK departed the European Union on 31st January 2019 and entered into an “Implementation Period” (“IP”) which ended on 31st December 2020. During that period the UK agreed to abide by the EU rules in return for continuing to enjoy a frictionless trade relationship with the EU. From the end of the IP the UK is free to diverge from the EU rules (except insofar as any divergence offends against provisions of the trade agreement between the EU and UK which was concluded in December 2020). All of this is nice and clear, but it brings us back to the problem of how to interpret these retained laws. Any EU laws which have not been amended since IP day are to be interpreted in the UK in accordance with retained case law and general principles of EU law.

But what happens when the EU law gets modified? That’s going to happen! It turns out that the UK courts can have regard to anything done after IP completion day by the EU or its courts. This isn’t quite the end of the story though. The UK courts may depart from EU law – they simply have to apply the same tests which would be used in deciding whether to depart from established UK precedent. (Originally this power to diverge was reserved to the Supreme Court but it has now been extended to all courts).

Don’t get rid of those EU notes or text books just yet!!