President of
the UK’s Supreme Court, David Neuberger, says the government needs to spell out
how British courts should interpret rulings from the European Court of Justic
e
(ECJ) after Brexit. Currently Britain must abide by ECJ judgments but Prime
Minister, Theresa May’s government has said that Britain will leave its
jurisdiction after Brexit. Britain has begun the long and complicated process
of disentangling UK legislation from more than 40 years of EU lawmaking, however
the government has said the British courts might still take note of ECJ rulings
after the country has left the bloc. Neuberger, told the BBC in an interview
aired on Tuesday: “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. “If it doesn’t express clearly
what the judges should do about decisions of the European Court of Justice,
then the judges will simply have to do their best.
“But to blame the judges
for, as it were, making the law when parliament has failed to do so would be
unfair.” Deciding the scope of ECJ is set to be one of the main sticking points
in divorce talks, such as whether the three million EU nationals living in
Britain should be able to seek recourse to the European court after Brexit.
Brexit supporters say the ECJ should have no say at all over British matters
and that the vote to leave the EU was partly about restoring legislative
sovereignty. However, former British Attorney-General, Dominic Grieve, a vocal
Brexit opponent, said Neuberger was right. “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. “We’re incorporating large amounts of European law into
our own law to ensure continuity but how is that to be interpreted
thereafter?’’ A government spokeswoman said ministers had been clear that the
direct jurisdiction of the ECJ 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,” she said.
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