At the moment, the European Court of Justice has final jurisdiction and judges look to its decisions to interpret difficult cases. Ministers said new decisions from the European Court of Justice will no longer be binding in the UK after Brexit. But they have also said judges can carry on interpreting its case law after Brexit when our legislation was derived from the EU, such as on workers’ rights.
Lord Neuberger, the president of the Supreme Court, called on the Government to state its position explicitly. He told, ‘If (the Government) doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair,’ he told the BBC.
He said the instructions judges would be expected to follow post-Brexit should be spelled out in statute.
The Government’s Repeal Bill says no UK court will need to have regard to decisions of the ECJ post-Brexit, but may do so if it considers it appropriate.
Neuberger, who is due to retire as president of the supreme court said all judges ‘would hope and expect Parliament to spell out how the judges would approach that sort of issue after Brexit, and to spell it out in a statute’.
He said he was more concerned about rulings the ECJ made after Brexit, adding: ‘If the UK Parliament says we should take into account decisions of the ECJ then we will do so. If it says we shouldn’t then we won’t. Basically we will do what the statute says.
Tom Brake, the Liberal Democrats’ Brexit spokesman, also called for clarity from the government. He said: “Judges have already been branded ‘enemies of the people’ for daring to challenge Theresa May’s plans to force through an extreme Brexit with no accountability.
“Now the government’s inability to set out clearly how, whether or when ECJ rulings should be taken into account risks leaving judges in the firing line yet again. The government must provide greater clarity in the repeal bill [the EU (withdrawal) bill] over the role the ECJ will play post-Brexit.”
A government spokesman said: ‘We have been clear that as we leave the EU, the direct jurisdiction of the European Court of Justice in the UK must come to an end.
‘However, we want to provide maximum certainty so the Repeal Bill will ensure that for future cases, UK courts continue to interpret EU-derived law using the Court of Justice of the European Union’s case law, as it exists on the day we leave the EU.’