Interpretation and effect of retained EU Law Section 6: Role of courts
This section amends section 6 of EUWA and inserts new sections 6A, 6B and 6C in relation to the application of retained case law by domestic courts interpreting and applying REUL.
	Section 6 modifies section 6 of EUWA as follows. Subsections (2), (3) and (4) insert amended provisions into section 6 of EUWA as regards the test to be applied by higher courts (that is, courts equivalent in authority, or higher than, the Court of Appeal, and their equivalents in Scotland and Northern Ireland) when considering whether to depart from retained EU case law or retained domestic case law. Retained EU case law and retained domestic case law continue to be defined in section 6(7) of EUWA.
	Subsection (3) establishes a new test to be applied by higher courts when considering whether to depart from retained EU case law, replacing the test in section 6(5) of EUWA. The new test sets out a non-exhaustive list of three factors for the higher court to consider, so that it must (among other things) have regard to:
the fact that decisions of a foreign court are not usually binding,
any changes of circumstances which are relevant to the retained EU case law, and
the extent to which the retained EU case law restricts the proper development of domestic law.
	These reflect some of the factors which the Court of Appeal in England and Wales took into account in deciding whether to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441.
	Subsection (4) establishes a new test to be applied by higher courts when considering whether to depart from their own retained domestic case law, by inserting a new paragraph (5ZA) into section 6 of EUWA. This also sets out a non-exhaustive list of three factors for the higher court to consider:
The extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart,
Any changes of circumstances which are relevant to the retained domestic case law, and
The extent to which the retained domestic case law restricts the proper development of domestic law.
	This list of factors in relation to retained domestic case law is similar to the list of factors in relation to retained EU case law. They differ on the first factor, as regards the relevance of the decisions of foreign courts as a factor according to whether EU or domestic case law is under consideration. The second and third factors are the same in each test.
	Subsection (5) repeals the powers in subsections (5A) to (5D) of section 6 of EUWA which are now spent, but which were exercised to make the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 ("the 2020 Regulations"). These regulations provided that the Court of Appeal and equivalent courts across the UK have the power to depart from retained EU case law, applying the same test as that used by the UK Supreme Court in deciding whether to depart from its own case law. The regulations are now superseded by the amendments made to section 6(4) EUWA by section 6(2). As amended, section 6(4) EUWA provides that the Supreme Court, High Court of Justiciary and "relevant appeal court" are not bound by retained EU case law (except so far as there is relevant domestic case law modifying or applying the retained EU case law and which is binding on the relevant appeal court). Subsection (6) inserts a new subsection (6B) into section 6 of EUWA with definitions for "compatibility issue", "devolution issue", "relevant appeal court" and "relevant domestic case law", and subsection (7) inserts a definition of "higher court" into section 6(7) of EUWA. The provisions in the Act on the role of the courts maintain the position under section 6 of EUWA and the 2020 Regulations that only courts (in England & Wales, Scotland and Northern Ireland) equivalent in authority, or higher than, the Court of Appeal, have the discretion to depart from retained case law.
	Section 6(4)(b)(i) of EUWA sets out that the High Court of Justiciary is not bound by retained EU case law when it is sitting as a court of appeal otherwise than in relation to a compatibility issue (within the meaning given by section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995) or a devolution issue (within the meaning given by paragraph 1 of Schedule 6 to the Scotland Act 1998). Subsection (2) of section 6 of the Act amends section 6(4)(b)(i), together with section 6(4)(ba) of EUWA and inserts new provisions after section 6(4)(b)(ii) of EUWA. This codifies and clarifies in section 6 that the High Court of Justiciary is not bound by any retained EU case law in these instances, or when it is sitting as a court of appeal in relation to a compatibility issue or devolution issue. This means that the High Court of Justiciary can depart from retained EU case law across the whole of its jurisdiction, where there is no relevant domestic case law which modifies or applies the retained EU case law which is binding on the court. This represents no change from the current position.
	Section 6 does not disturb section 6(6A) of EUWA, which makes clear that the provisions in section 6 of EUWA about the interpretation of retained EU law are subject to "relevant separation agreement law". Section 7C of EUWA directs courts to interpret that law in accordance with the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss Citizens’ Rights Agreement (so far as they are applicable). Therefore the measures taken by this Act to introduce new tests for the higher courts to follow when considering departure from retained EU case law will also be subject to relevant separation agreement law.