The government must provide clarity on whether it wants UK courts to take into account rulings of the European court of justice after Brexit, one of Britain’s most senior judges has said.
Judges have been told they will no longer be forced to do so, but can if they think it appropriate. However, the president of the supreme court, Lord Neuberger, called on the government to state its position explicitly.
“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,” he told the BBC.
“But to blame the judges for making the law when parliament has failed to do so would be unfair.”
He said the instructions judges would be expected to follow after Brexit should be spelled out in statute.
The ECJ rules on how EU laws should be interpreted and courts in member states are bound to follow its rulings. The government’s position is that this arrangement should end for cases that have not already been put before the court when the UK leaves the EU.
Neuberger, who is due to retire as president of the supreme court, said he was more concerned about rulings the ECJ made after Brexit. “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.”
He added that the UK should abide by ECJ rulings “when this is required to ensure free trade with the EU and continued cooperation against crime and terrorism”.
A government spokesman suggested that judges would be free to take European case law into account but not forced to do so, leaving it at their discretion.
“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.”
But Dominic Grieve, a Conservative MP and former attorney general, said the repeal bill was still very unclear about the future relationship between British and European courts.
He told the BBC’s Today programme: “The point that Lord Neuberger is making is that that leaves a very wide measure of discretion to our own judiciary, and what he’s saying is there’s no point in those circumstances turning round at some subsequent point and saying: ‘Well, the judges are interpreting this in a way that is causing us, for example, difficulties.’”
The issue has also been raised by the Institute for Government, which warned in June that the lack of clarity could put judges at the heart of a political battle.
It suggested parliament could avoid dangerous ambiguity in the legal system by instructing UK courts to take account of post-Brexit ECJ decisions “when they are relevant”.
This would mean ECJ decisions were no longer binding on UK courts in line with the government’s ambition to take “back control of our laws”, but would also allow British judges to draw on helpful precedents as they do from other foreign courts.
Jill Rutter, the institute’s Brexit programme director, warned that it was not simple to end the jurisdiction of the ECJ. She said: “The court’s role is not one issue but many, and the government so far has only come up with some of the answers.
“As MPs gear up to scrutinise the repeal bill, they should adopt a more comprehensive approach to avoid a legal muddle after we leave the EU.”
The issue of the ECJ has become one of the most difficult and intractable in the Brexit negotiations so far. Theresa May has insisted that the ECJ’s jurisdiction should end but this stance has been criticised by the former chief of staff to her own Brexit secretary, David Davis.
James Chapman, who previously worked for George Osborne, said May’s “absolutist” position was a “red line, effectively for a conference speech, that hamstrung these negotiations”.
The UK has suggested the British courts would be sufficient to adjudicate on issues such as the rights of European citizens in the UK after Brexit.
However, the EU has signalled it wants the ECJ to guarantee EU citizens’ rights, as well as the withdrawal negotiations and future trade disputes between the two parties.
One alternative to ECJ jurisdiction would be setting up a different, supranational independent arbitrator to oversee disputes between the UK and the EU after Brexit.
This article was written by Kevin Rawlinson, for theguardian.com on Tuesday 8th August 2017 19.31 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010