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Neuberger appeals for more post-Brexit guidance for judges

8 August 2017

More clarity is needed for British judges over the status of European case law after Brexit, according to the President of the UK Supreme Court.

In a BBC interview Lord Neuberger, who retires as President at the end of the summer, said that Parliament must be "very clear" about the status of decisions of the EU Court of Justice after exit day. Judges should not be blamed for misinterpretations if the position was unclear.

At present, British courts can ask for rulings from the CJEU on points of European law which they then have to apply to the case before them. They are also bound by the court's case law on EU law.

The Prime Minister has made it a "red line" in the exit negotiations that the CJEU should have no further jurisdiction as regards the UK after exit day, but as EU law is being converted into UK law under the European Union (Withdrawal) Bill, there are provisions in it as to how to treat CJEU decisions.

Clause 6 of the bill states that a UK court or tribunal is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and cannot refer any matter to the European Court on or after exit day. It also "need not have regard to anything done on or after exit day by the European Court", but "may do so if it considers it appropriate to do so".

Lord Neuberger said his main concern was about post-Brexit rulings of the CJEU. "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."

He commented that if the Government "doesn't express clearly what the judges should do about decisions of the European Court 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".

A Government statement 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."


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