British judges could still apply European court decisions after Brexit, says UK’s top judge
British judges could still apply European court decisions after Brexit, the UK’s top judge has said.
Lord Neuberger, the Supreme Court president, has called for clarity about how the judiciary should handle the issue and said judges should not face the blame for misinterpretations “when parliament has failed to do so”.
Theresa May, the Prime Minister, has made ending the ECJ’s oversight of British legal matters one of her Brexit “red lines”, but ministers have also said the UK courts will still have to use European case law to inform their rulings around legislation derived from the EU.
Speaking to the BBC, Lord Neuberger called on the Government to “spell out” how judges should approach the issue.
“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,” he said.
“But to blame the judges for making the law when parliament has failed to do so would be unfair.
“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.”
Owen Paterson, the Tory MP, told the BBC’s Today programme that it should be made clear the “ECJ does not have the remit to tell UK citizens what to do.”
He also suggested that a special body of British lawyers could advise UK courts on interpretations of EU law after Brexit.
Mrs May pledged to “bring an end to the jurisdiction of the European Court of Justice in Britain” in January during her flagship Brexit speech at Lancaster House.
She criticised the idea of the court having “direct legal authority in our country” and said any continued influence would be tantamount to “not leaving the EU at all”.
A government spokesperson 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.”
It comes as the Daily Telegraph revealed British judges will be able to block extradition requests by EU nations after Brexit under Government plans to avoid a rebellion by eurosceptic Tory backbenchers.
David Davis, the Brexit Secretary, has said that the Supreme Court will act as the final body of appeal for British citizens facing extradition under the European Arrest Warrant instead of EU courts.
The approach, which will be set out in a Brexit position paper published ahead of negotiations, is intended to address the concerns of dozens of eurosceptic Tory MPs who are considering rebelling over the issue.
However many of them remain concerned that retaining the European Arrest Warrant will still see British citizens extradited and forced to face “sub-standard” judicial systems abroad.
August 8th, 2017: Telegraph