“If [the government] doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, …”
Lord Neuberger said 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”.
“That’s why he said ‘don’t blame us when we have to carry out this interpretive role.’ It’s not clear to him what Parliament is asking the judiciary to do”.
The draft legislation also states that the UK’s courts and tribunals “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”. “If it says we shouldn’t then we won’t”.
“We’re incorporating large amounts of European law into our own law to ensure continuity but how is that to be interpreted thereafter?”
Speaking on the Today programme, on BBC Radio 4, Mr Paterson said a body should be set up which “parallel and mirrors” the ECJ.
“Lord Neuberger is highlighting [that] it’s far from clear, when you look at the legislation, what you’re asking the judges to do”. It provides for the repeal of the 1972 European Communities Act, which gives recognition to the superiority of EU law in the United Kingdom, and the transfer of any legislation applicable in the United Kingdom through EU law at the point of exit directly onto the statute book.
Grieve, MP for Beaconsfield and former attorney general, said Lord Neuberger was right to raise the issue because the issue remains unclear.
“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”.
Britain has begun the long and complicated process of disentangling United Kingdom legislation from more than 40 years of European Union lawmaking, however the government has said the British courts might still take note of ECJ rulings after the country has left the bloc.
“We must not let the Conservatives’ obsession with ending the jurisdiction of the ECJ lead to a chaotic Brexit that would maximise damage to British jobs and families”. Other trade deals have suffered from being subject to the ECJ; for instance, the EU-Canada Free Trade Deal (CETA) almost collapsed because it required unanimous agreement with all members of the EU on the details of the deal.