Interpretation and effect of retained EU Law Section 6: Role of courts New section 6B EUWA: References on retained case law by law officers
Section 6(8) inserts a new section 6B into EUWA, which establishes a new procedure for a law officer of the UK Government or the devolved administrations to refer a point of retained case law to a higher court.
	Law officers may exercise the reference power on behalf of their respective Governments in cases where other ministers have a particular view as to the meaning and effect of a relevant piece of REUL. It is expected that law officers and ministers would agree this approach in the usual way, as they would for other legal proceedings that their Government participates in. For example, in a case concerning English legislation in the area of fisheries or agriculture, the Attorney General might consult the relevant Secretary of State on the Government’s view of the relative merits of referring a point of law to the higher court. The power will allow the law officers to then bring the point of law before a higher court to consider in light of the new tests for departure from retained case law, for the court to give a decision on the correct interpretation of relevant REUL.
	The law officers are listed in new section 6B(2) and (8) as the Lord Advocate, the Counsel General for Wales, the Attorney General for Northern Ireland, the Attorney General for England and Wales, the Advocate General for Scotland, and the Advocate General for Northern Ireland.
	New section 6B(1) provides that the new reference procedure applies where proceedings have concluded in a court or tribunal which was required by section 6 of EUWA to follow retained case law. This applies where:
proceedings have been brought and concluded before a lower court or tribunal that was bound by retained case law under section 6 of EUWA,
no reference was made by the lower court in the case to a higher court, under new section 6A (as described above), and
either there has been no appeal, or any appeal has been concluded or dismissed without it being heard by a higher court.
	New section 6B(2) provides that a law officer of the UK Government or devolved administrations may refer points of law which arise on retained case law in the proceedings to a higher court. A law officer of a devolved administration may only make a reference on a point of law that relates to the meaning or effect of relevant Scotland, Wales or Northern Ireland legislation (as the case may be), as defined in new section 6B(8). Under section 6 of EUWA, the higher court is not bound by retained case law, and may decide whether or not to depart from retained case law on the point of law referred.
	New section 6B(3) requires the reference to be made within six months of the last day on which an appeal in the case could have been made, or within six months of the day on which any appeal was finally dealt with. New section 6B(9) provides that the possibility of an appeal out of time is not relevant for the purpose of calculating this period.
	New subsection 6B(4) provides that a reference must be made to the appropriate appeal court, but must be made to the Supreme Court if it concerns the retained case law of that court. "Appropriate appeal court" is defined in new section 6A(9). The list of courts set out in section 6A(10) applies in this context.
	New section 6B(5) requires the higher court to accept a validly made reference.
	New section 6B(6) provides that the decision of the higher court on the point of law referred has no effect on the outcome of the proceedings which concluded before the lower court or tribunal. However, in accordance with the doctrine of precedent, the decision on the point of law will be binding on lower courts or tribunals in future proceedings where the same point of law arises.
	New section 6B(7) provides that, where the appropriate appeal court has made a decision on the point(s) of law concerned, an appeal may lie against that decision to the Supreme Court, subject to obtaining permission to appeal.
	New section 6B(8) defines relevant Scotland, Wales or Northern Ireland legislation for the purpose of references made by a law officer of a devolved administration as:
an Act or measure passed by a devolved legislature;
subordinate legislation made by a devolved administration;
provisions inserted by such an Act, measure or subordinate legislation into any other legislation; or
any other provision that:
would be within the legislative competence of a devolved legislature if it were contained in an Act or measure passed by that devolved legislature, or
a provision which could be made in subordinate legislation by a devolved administration acting alone.
	Appeal courts have discretionary case management powers which they may exercise in references under new section 6B. For example, in the event of multiple references from different law officers, a court may choose to join references for a single hearing where appropriate. Or in the event of a reference by one law officer, it may choose to permit an intervention from another law officer or other interested party