03:44, August 08 317 0 theguardian.com

2017-08-08 03:44:03
Judge calls for clarity on status of ECJ rulings in UK after Brexit

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. The president of the supreme court, Lord Neuberger, demanded greater clarity over the issue.

ECJ - Brexit phrase

“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 ECJ rules on how EU laws should be interpreted and, as in the other member states, the UK courts 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 the 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.”

Theresa May has been insistent that the ECJ’s jurisdiction should end but she has been criticised by the former chief of staff to her own Brexit secretary, David Davis.

James Chapman, who also worked for George Osborne, said May’s “absolutist” position was a “red line effectively for a conference speech that hamstrung these negotiations”.

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.”