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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Open Rights Group & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor [2021] EWCA Civ 1573 (29 October 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/1573.html Cite as: [2022] QB 166, [2021] WLR(D) 548, [2021] EWCA Civ 1573 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Supperstone
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE SINGH
and
LORD JUSTICE WARBY
____________________
THE QUEEN on the application of OPEN RIGHTS GROUP (2) THE3MILLION |
Claimants/Appellants |
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- and - |
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(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) SECRETARY OF STATE FOR DIGITAL, CULTURE, MEDIA AND SPORT |
Defendants/Respondents |
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- and - |
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(1) LIBERTY (2) INFORMATION COMMISSIONER |
Interveners |
____________________
Sir James Eadie QC and Tristan Jones (instructed by the Treasury Solicitor) for the Respondents
The First Intervener was not represented
Christopher Knight (instructed by ICO) for the Second Intervener
Hearing date: 8 October 2021
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10am on Friday 29 October 2021.
LORD JUSTICE WARBY:
The first issue: is there jurisdiction to suspend relief?
"76. … the appropriate and principled approach is for the court to allow both the Government and Parliament a reasonable amount of time in which they have the opportunity to enact national legislation to correct the defects which exist and which are incompatible with EU law.
….
85. … there are strong constitutional reasons, and not only practical ones, for declining to grant any order or declaration which would have the effect of immediately disapplying the provisions of Part 4 of the 2016 Act."
"The primacy and uniform application of EU law would be undermined if national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily."
"132 … the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to rules of EU law clarifies and defines the meaning and scope of those rules as they must be or ought to have been understood and applied from the time of their entry into force. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties.
…
135. By virtue of the principle of primacy of EU law, rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law … Even assuming that overriding considerations of legal certainty are capable of leading, by way of exception, to a provisional suspension of the ousting effect which a directly applicable rule of EU law has on national law that is contrary thereto, the conditions of such a suspension can be determined solely by the Court …"
(1) A UK court must now decide any question as to the validity, meaning or effect of any retained EU law for itself: it is no longer possible to refer any matter to the CJEU: EUWA s 6(1)(b).
(2) But the general rule is that the court must decide any such question in accordance with any retained case law and any retained general principles of EU law that are relevant: EUWA s 6(3). "Retained EU case law" and "retained general principles" mean principles laid down and decisions made by the CJEU before IP completion day.
(3) When it comes to principles laid down or decisions made by the CJEU after IP completion day, the court is not bound (EUWA s 6(1)) but "may have regard" to them (EUWA s 6(2)).
(4) The position is different in a "relevant court", which includes the Court of Appeal. Subject to an exception that does not apply here, a relevant court is not absolutely bound by any retained EU case law: EUWA s 6(4)(ba) and Regulations 1 and 4. It can depart from that law; but the test to be applied in deciding whether to do so is "the same test as the Supreme Court would apply in deciding whether to depart from the case law of the Supreme Court": EUWA 6(5A)(c) and Regulation 5.
(5) The test the Supreme Court applies is the one laid down by the House of Lords in its Practice Statement [1966] 1 WLR 1234, when Lord Gardiner LC said this:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House."
The second issue: how, if at all, should the jurisdiction be exercised?
How long?
Complete or partial suspension?
The form of order
Lord Justice Singh:
Lord Justice Underhill:
Note 1 The provisions at issue were s 3 of the Representation of the People Act 1983 and s 8 of the European Parliamentary Elections Act 2002, and Article 20(2)(b) of the Treaty on the Functioning of the European Union (“TFEU”) and Article 40 of the Charter of Fundamental Rights (“the Charter”). [Back]