- Reuters/Luke MacGregor
- Supreme Court President Lord Neuberger criticises May’s government for failing to clarify how Brexit will affect UK law. Lord Neuberger says it would be “unfair” to blame judges if the government fails to clarify how European law should be interpreted after Britain leaves the EU.
LONDON – The UK’s Supreme Court president has claimed that judges might be forced to make the law after Brexit if the government is not clear on how courts should interpret European legislation.
Lord Neuberger, who is the most senior judge in the UK, said that Theresa May’s government must provide clarity on how European Court of Justice rulings should be dealt with after Brexit or judges will be forced to merely “do their best” in confusing legal circumstances.
He added that it would be “unfair” to blame judges if they were tasked with “making the law” instead of Parliament due to government failings.
UK legislation is currently subject to rulings made by the ECJ in Strasbourg, but the government has made it clear that Brexit will mean leaving its jurisdiction.
The European Union (Withdrawal) Bill says that UK courts do not have to give credence to any decisions made by the ECJ after the UK leaves the EU, but “may do so if it considers it appropriate.”
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.”
The Supreme Court president said 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.
“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.”
Former environment secretary Owen Paterson told BBC Radio 4’s Today programme that there was a place for a UK body with specialist lawyers to decide on the interpretation of EU law.
The Conservative MP said: “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 ECJ… There must be a recognition that the ECJ does not have a remit to tell UK citizens what to do.”
Responding to Lord Neuberger’s comments, 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 ECJ’s case law, as it exists on the day we leave the EU.”
The Liberal Democrat’s Brexit spokesperson Tom Brake 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 over the role the ECJ will play post-Brexit.”