Britain’s most senior judge has said the government needs to spell out how British courts should interpret rulings from the European Court of Justice after Brexit.
“But to blame the judges for making the law when parliament has failed to do so would be unfair”.
In the Repeal Bill, which the British government managed to narrowly get through Parliament with the support of MPs from the Democratic Unionist Party, it says British courts would not have to follow rulings made by the ECJ but “may do so if it considers it appropriate”.
“If it says we shouldn’t then we won’t”.
In exactly the same way, Mr Davis’s proposal could be implemented here, with British courts using ECJ decisions as persuasive precedent and our own Supreme Court decisions retaining binding precedent status.
Former environment secretary Owen Paterson said United Kingdom judges could not be left “flapping around” without “clear guidance” after the United Kingdom leaves the European Union.
“The legislation for withdrawing us from the EU … leaves very unclear what the relationship subsequently between European Court of Justice decisions and jurisprudence and our own courts should be”, he told BBC radio.
Owen Paterson, a Conservative MP and prominent Leave campaigner, said a new body should be formed which could scrutinize the judgments of the ECJ.
Conservative former environment secretary Owen Paterson, a prominent Brexiteer, told BBC Radio 4’s Today programme there was a role for a United Kingdom body with specialist British lawyers to adjudicate on the interpretation of European Union law.
“Lord Neuberger is highlighting [that] it’s far from clear, when you look at the legislation, what you’re asking the judges to do”.
“There must be a recognition that the ECJ does not have a remit to tell United Kingdom citizens what to do”.
Former British Attorney General Dominic Grieve, a vocal Brexit opponent, agreed with Lord Neuberger.
“While our constitutional settlement has been in one of its periodic reform phases over the last two decades, the idea that parliament is no longer legally sovereign and that the judiciary, whether at home or in Strasbourg, are the masters now is quite simply wrong”, he said.
“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”.
Meanwhile, a spokesman for the Government said the Great Repeal Bill would aim to smooth out this transition. 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.