Lord Neuberger: clarity needed on European Court of Justice

European Court of Justice

The government must be clear about the role of the European Court of Justice (ECJ) following Brexit, the President of the Supreme Court has claimed.

Lord Neuberger of Abbotsbury, who is due to retire next month, said clarity would be vital on how British judges should respond to rulings made by the ECJ after Britain’s eventual exit from the European Union.

In an interview with the BBC this week, the President said judges would take the approach specified by Parliament: taking ECJ rulings into account when ruling on cases or not doing so.

“Basically we will do what the statute says.”

But without guidance on the issue, judges would have to improvise and do whatever they believed was best, exposing them to the risk of blame and criticism. It would not be fair, said his Lordship, to:

“…blame the judges for making the law when parliament has failed to do so”.

His Lordship’s remarks were a reference to the government’s recently published Repeal Bill, which will copy a considerable body of EU law onto the UK statute books in order to avoid enormous disruption after Brexit, The Financial Times reports. The Repeal Bill specifically states that Britain will no longer be bound by the ECJ after we leave the European Union. But it adds:

“A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

This clause was intended to allow judges the freedom to take legal context into account when making rulings, the paper notes. But some judges fear that any consideration given to the ECJ could attract the kind of hysterical condemnation that came from some quarters following the Supreme Court’s ruling on the need for a parliamentary vote over Brexit last November.

Image by Chensiyuan via Wikipedia under a Creative Commons licence

Stowe Family Law Web Team

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1 comment

spinner - August 11, 2017 at 3:32am

There is no role for the ECJ following Brexit as in any other sovereign nation. Does it have a role in China, India or the USA?

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