The President of the Supreme Court has said the Government must clarify what judges should do with ECJ decisions after Brexit.
Government Ministers and Theresa May have made it clear that they believe the ECJ’s jurisdiction will not extend to the UK after Brexit. Confusingly they have also told judges they must continue to interpret the ECJ’s case law.
Not to put it too strongly the Government puts the judges in an unenviable position of having little or no guidance on how to approach areas of European law after Brexit.
A Government spokesperson 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.”
Judges have been told they will no longer be forced to take account of ECJ case law but may do so if they feel it is appropriate.
Such displacement of responsibility and fudging the issue has drawn a stark rebuke from the President of the Supreme Court.
Lord Neuberger told the BBC:
“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.”
Lord Neuberger 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 but it has not clarified exactly what should happen to rulings that post-date Brexit.