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Judges need clarity on EU law post-Brexit

Blaming judges for making law when parliament has failed to do so would be unfair, says Lord Neuberger

8 August 2017

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The outgoing president of the Supreme Court has warned the government that UK judges will be forced to interpret EU law themselves unless clarity is provided on European court jurisprudence post-Brexit.

In a BBC interview, Lord Neuberger said parliament must be “very clear” in telling the judiciary what to do about judgments from the Court of Justice for the European Union (CJEU) in Brexit Britain, adding that judges should not be blamed for misinterpretations if clarity is not provided.

“If [the government] doesn’t express clearly what the judges should do about decisions of the [CJEU] after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best,” he said. “But to blame the judges for making the law when parliament has failed to do so would be unfair.”

Rulings of the CJEU delivered before Brexit will be retained in UK domestic law and given equal status to Supreme Court rulings, according to the recently published European Union (Withdrawal) Bill.

The proposed legislation, previously dubbed ‘Great Repeal Bill’, also states that UK courts will not have to pay regard to CJEU decisions after Brexit. However, a UK court “may do so if it considers it appropriate”.

Lord Neuberger, who is to be replaced by Baroness Hale as president of the UK’s highest court, added that 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”.

Speaking on BBC Radio 4’s Today programme, Conservative MP and Leave campaigner Owen Paterson proposed a new legal body, staffed by British lawyers, be constructed to advise the Supreme Court on the interpretation of EU law post-Brexit.

“You cannot leave the judges flapping around without clear guidance and I would suggest we set up our own body which would parallel and mirror and be in symmetry with the [CJEU],” he said.

The outgoing Supreme Court president also expressed his concerns about cuts to legal aid, suggesting that the principles of access to justice and the rule of law was being undermined.

“I appreciate there are demands on government finance and money is short, but if people have a right to go to court to defend their position or enforce their rights then if they cannot do so the rule of law is undermined and we are all in a very unhappy situation.”

John van der Luit-Drummond, deputy editor

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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EU & International Courts & Judiciary