Leaving the EU: Legislation so far, how it affects environmental law and what to expect in October 2024

The Retained EU Law (Revocation and Reform) Act 2023 (“REUL Act”) has been key in the UK’s legal landscape post-Brexit. This article explores the journey so far and the pivotal changes set to take effect on 1 October 2024, particularly focusing on sections 6, 6A, 6B, and 6C of the REUL Act.

What has happened so far?

Since Brexit, the UK has been navigating the complex process of disentangling its legal system from EU law.

There have been a number of key developments from the REUL Act affecting environmental law from 1 January 2024. These are:

• Repeal of Section 4 of the EU (Withdrawal) Act 2018: This repeal means that the legal EU law doctrine of “direct effect” can no longer be relied upon in UK courts. This means that an EU Directive can no longer be relied upon directly in a legal case in the UK.
• Amendments to Section 5 of the EU (Withdrawal) Act 2018: The REUL Act 2023 has amended Section 5 so that EU law no longer has primacy over domestic law and no general principle of EU law is part of domestic law.
• Renaming of ‘retained EU law’: ‘Retained EU law’ is now referred to as ‘assimilated law’.

What to expect in October 2024?

 From 1 October 2024, sections 6, 6A, 6B, and 6C of the REUL Act will come into force, introducing further significant changes to how UK courts treat assimilated case law.

Section 6: Departure from assimilated EU case law

Section 6 will change the test that the higher courts (the Supreme Court and Court of Appeal in England) must apply when deciding whether to depart from assimilated EU case law. Instead of applying the previous test of ‘when it appears right to do so’, the higher courts must consider (among other things) the following three factors:

• The fact that foreign court decisions are non-binding;
• Changes in circumstances relevant to assimilated EU case law;
• The extent to which assimilated EU case law restricts the proper development of domestic law.

Section 6 also changes the test that higher courts must apply when deciding whether to depart from assimilated domestic case law. Higher courts must consider similar factors to those used for assimilated EU case law. The main difference is in the first factor: for EU case law, courts take into account that foreign court decisions are non-binding. In contrast, for domestic case law, courts must consider how much it is shaped or influenced by the assimilated EU case law from which they wish to depart. However, the second and third factors—changes in relevant circumstances and the extent to which the case law restricts the proper development of domestic law—remain the same for both EU and domestic case law.

Sections 6A and 6B: references and interventions

Sections 6A and 6B establish new procedures for referrals to be made to the higher courts on points of law which arise on assimilated case law. The referrals can be made by the lower courts, law officers (this is the Attorney General in England), and devolved administrations.

Section 6C: law officers’ interventions

 Section 6C formalises the right of law officers (e.g. the Attorney General) to intervene in higher court proceedings, providing an additional layer of oversight and ensuring that the development of domestic law aligns with the UK’s post-Brexit legal framework.

Conclusion

Case law plays a very important role in understanding the interpretation of environmental legal regimes. As explained above, relying directly on Directives in our domestic courts has not been permitted since the start of this year. Section 6 means that the higher courts will have more freedom to deviate from domestic and EU assimilated case law after 1 October 2024. These factors mean that those whose operations are constrained by environmental law will no doubt use these changes to test the limits of assimilated case law. We are likely to witness increased uncertainty and litigation as the limits of assimilated case law are tested.