09th August 2017

UK Judges Must be Clear on UK leaving the EU - Lord Neuberger

Britain’s most senior judge, Lord Neuberger, has stated that the government must provide more clarity in relation to how UK law will be developed after Britain leaves the European Union.

Under current law enforced by the EU, UK legislation is subject to rulings made by the EU’s highest court – the European Court of Justice. Lord Neuberger has said that Parliament must be “very clear” in informing judges what to do about decision that the ECJ make after the UK leaves the EU and that they should not be blames for misinterpretations if this has not been made clear.

Lord Neuberger has been quoted as saying: "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."

He also went on to say that he believes 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.”

Currently, the ECJ is in effect the EU’s Supreme Court, overseeing the application and interpretation of EU law which make its ruling binding on all member states.

When the UK leaves the EU, the ECJ will continue to develop law on a variety of areas which can range from discrimination to transgender rights.

Prime Minister Theresa May has since insisted that the ECJ should have no jurisdiction over the UK once it leaves the EU.

In addition, the government’s Repeal Bill states that UK courts do not have adhere t decisions the ECJ makes once ‘Brexit’ has been finalised unless it feels it is appropriate to do so.

The government has also stated in its repeal Bill – also known as the European Union (Withdrawal) Bill – will ensure that historic judgements of the ECJ will be given the same binding or precedent status in UK courts as decisions made in the Supreme Court.

These judgements can include areas such as calculation of holiday pay for UK workers.

Andy Cash, Criminal Defence Solicitor at Cartwright King comments:

“Lord Neuberger correctly draws attention to the inevitable difficulties that will arise after Brexit.

“Our lawyers are ready to advise on potential implications, but the most difficult issue is the current lack of certainty which could be remedied by guidance from government.

“The retiring President points out that our Judges interpret legislation. By so doing they can also develop areas of law and it falls to the Government and Parliament to identify how our laws are to develop after Brexit.

“Lawyers in many areas within Cartwright King, but particularly Motoring, Transport and Regulatory Law are watching these issues closely”.

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