Part 68 PROCEEDINGS UNDER THE EUROPEAN UNION (WITHDRAWAL) ACT 2018
PLEASE NOTE PART 68 is not effective until such time as section 6 Retained EU Law (Revocation and Reform) Act 2023 might be brought into force.
Contents of this Part
Interpretation
68.1. In this Part—
“the Act”means the European Union (Withdrawal) Act 20181;
“referring court or tribunal” means the court or tribunal making a reference under section 6A of the Act to the Court of Appeal,
and terms used in this Part have the same meaning as in the Act.
References under section 6A of the Act: proceedings before County Court or High Court
68.2.—(1) An application by a party to proceedings before the County Court or High Court for that court (“the court”) to make a reference under section 6A(1) of the Act is made under Part 23 using the approved form.
(2) The application notice must—
(a)state the point of law which arises on assimilated case law and the question to be determined on that point of law;
(b)set out the reasons for considering the point of law to be of general public importance; and
(c)describe the relevance of the point of law to the proceedings before the court.
(3) ) If the court is considering under section 6A(2)(a) of the Act whether to make a reference under section 6A(1), it must invite the parties to the proceedings to make representations.
(4) A copy of any reference must be sent by the court to—
(a)the parties to the proceedings;
(b)the Law Officers listed in section 6C(2) of the Act.
(Rules 68.3 and 68.4 make provision for how the reference is made to the Court of Appeal and for procedure in the Court of Appeal once the reference is made; and for references to the Supreme Court, provision for those matters is made by the Supreme Court Rules.)
References under section 6A of the Act: Court of Appeal
68.3.—(1) A reference under section 6A of the Act to the Court of Appeal is made when the referring court or tribunal files the reference with the Court of Appeal.
(2) A reference filed under paragraph (1) must—
(a)state the point of law which arises on assimilated case law and the question to be determined on that point of law;
(b)set out the referring court or tribunal’s reasons for considering the point of law to be of general public importance; and
(c)describe the relevance of the point of law to the proceedings before the referring court or tribunal.
(3) Before the reference is filed, a copy of it must have been sent by the referring court or tribunal to—
(a)all parties to the proceedings before the referring court or tribunal; and
(b)the law officers listed in section 6C(2) of the Act.
(4) The persons listed in paragraph (3) may make written submissions to the Court of Appeal as to whether the Court of Appeal should accept the reference.
(5) Any submissions made under paragraph (4) must unless the Court of Appeal directs otherwise be filed with the Court of Appeal within 14 days of the copy of the reference being sent under paragraph (3), and a copy of the submissions must be sent to each of the persons listed in paragraph (3) when they are filed.
(6) The question whether to accept the reference shall be considered by a single judge of the Court of Appeal and without an oral hearing, except as provided for under paragraph (7).
(7) The judge considering the reference on paper may direct that the question whether to accept the reference be determined at an oral hearing, and must so direct if the judge is of the opinion that the question cannot be fairly determined on paper without an oral hearing.
(8) An oral hearing directed under paragraph (7) must be listed—
(a)no later than 14 days from the date of the direction under that paragraph; and
(b)before the judge who made that direction,
unless the court directs otherwise.
(9) The Court of Appeal may, in any direction under paragraph (7)—
(a)identify any issue or issues on which the submissions should specifically be focused at the oral hearing in order to assist the court to determine whether to accept the reference; and
(b)direct any person listed in paragraph (3) to serve and file written submissions and to attend the oral hearing.
(10) The Court shall send a copy of the decision on whether to accept the reference to the referring court or tribunal and each of the persons listed in paragraph (3).
Submissions to the Court of Appeal on references on assimilated case law under section 6A of the Act
68.4.—(1) Any person may make written submissions to the Court of Appeal as to whether the Court should accept a reference under section 6A of the Act and request that the Court takes them into account.
(2) Any submissions made under paragraph (1) must be sent by the Court to the referring court or tribunal and each of the persons listed in rule 68.3(3).
(3) Any submissions made under this rule shall be referred to the judge considering whether to accept the reference, who may take them into account to such extent as the judge considers appropriate, or may decline to take them into account.
Interventions in references on assimilated case law under section 6A of the Act in the Court of Appeal
68.5.—(1) If the Court of Appeal decides to accept a reference made to it in accordance with rule 68.3, a copy of the decision shall be sent to—
(a)each of the persons who made submissions under rule 68.4; and
(b)the parties to the proceedings before the referring court or tribunal.
(2) If any person listed in paragraph (1) wishes to intervene in the reference, an application to intervene must be made to the Court of Appeal under Part 23.
References on assimilated case law by law officers under section 6B of the Act
68.6.—(1) A reference under section 6B of the Act to the Court of Appeal is made when a law officer files the reference with the Court of Appeal.
(2) A reference filed under paragraph (1) must—
(a)state the question to be determined on the point of law which arose on assimilated case law in proceedings before a court or tribunal (other than a higher court) which have concluded;
(b)confirm that the conditions in section 6B(1) of the Act are met;
(c)describe the relevance of the point of law to the concluded proceedings; and
(d)if the reference is made by the Lord Advocate, the Counsel General for Wales or the Attorney General for Northern Ireland, confirm that the point of law relates to the meaning or effect of relevant Scotland legislation, relevant Wales legislation or relevant Northern Ireland legislation, as applicable.
(3) A law officer making a reference under paragraph (1) must serve a copy of the reference on each of the other law officers before it is filed with the Court of Appeal.
Steps after reference accepted
68.7. When the Court of Appeal accepts a reference made to it under section 6A or 6B of the Act, it must give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the hearing of the reference. (Section 6B(5) of the Act requires a court to which a reference is made under that section to accept the reference.)
Section 6C of the Act – decisions on whether to depart from assimilated case law
68.8.—(1) Where section 6C of the Act applies, notice of the proceedings must be given to the law officers listed in section 6C(2).
(2) A notice given under paragraph (1) must also be given to all parties to the proceedings.
(3) The following shall be joined as a party to the proceedings on notifying the court that they wish to be joined—
(a)any UK law officer;
(b)the Lord Advocate if the argument relates to the meaning or effect of relevant Scotland legislation;
(c)the Counsel General for Wales if the argument relates to the meaning or effect of relevant Wales legislation;
(d)the Attorney General for Northern Ireland, if the argument relates to the meaning or effect of relevant Northern Ireland legislation.
(4) Notification under paragraph (3) shall also be given to the other parties to the proceedings.
(5) The Court of Appeal may not decide the question whether it should depart from assimilated case law unless 28 days, or such other period as the court directs, has elapsed since the giving of notice under paragraph (1).
- 2018 c. 16. Sections 6A to 6C were inserted by the Retained EU Law (Revocation and Reform) Act 2023 (c. 28). Back to text
