Parliament must provide clarity on the status of European Court of Justice judgments in UK jurisprudence post-Brexit - or see judges develop and define the relationship, the president of the Supreme Court has said.
Lord Neuberger told the BBC that judges needed more guidance on the intended separation of the UK from the jurisdiction of the ECJ: ‘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.’
The repeal bill states that UK courts do not have to pay heed to decisions of the ECJ after the UK has left the EU - but that a UK court ‘may do so if it considers it appropriate’. It is clear from his intervention that Neuberger believes this is an inadequate expression of the future status of ECJ judgments as the court develops law across a range of key areas.
Neuberger added: ‘To blame the judges for making the law when parliament has failed to do so would be unfair.’
He said 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’.