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Here is the Bar Council’s response to the MoJ consultation on departure from retained ECJ case-law, to which I contributed on behalf of the Bar Council Law Reform Committee. https://www.linkedin.com/posts/george-peretz-qc-8a947227_bar-council-response-consultation-on-retained-activity-6701092108226375680-zCip
TLDR: the Bar Council does not think it’s a good idea to give courts below the Supreme Court power to depart from ECJ case-law on the meaning of EU law that we are holding onto.
A good example is the topical one of the right to refunds of delayed flights. That right is not clearly stated in Reg 261/04. But the ECJ has made it clear that it exists and the English Court of Appeal has followed and applied that case law.
If a first instance court could just decide that the ECJ got it wrong, airlines (which often try to delay these cases) could insist on trying to argue that the ECJ was wrong, delaying claims.
Also - since the ECJ ruling has been applied and extended by the Court of Appeal - would the first instance Court be free to depart from CA precedent (which it can’t normally do)? Do you discount the CA here? Or do you treat it as a CA precedent not just an ECJ one?
If the latter, then the status of pre Brexit ECJ judgments depends on the happenstance of whether the CA has had reason to apply them. Rather odd. If the former, then you are mucking about with domestic precedent - very damaging to legal certainty in a common law system.
That is just one of the anomalies here.
