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British judges could face “opprobrium” after Brexit unless parliament sets out the line they should adopt in following European law, the lord chief justice warned yesterday.
Lord Thomas of Cwmgiedd said that the judiciary would need more clarity from parliament on dealing with European law when it is incorporated into British law after the country leaves the bloc.
He told the justice select committee of MPs that there was a “very substantial risk” that British judges would find themselves rebuked as “spokespeople” for European courts if they continued to follow their judgments.
He said that the Court of Justice of the EU [CJEU] would be interpreting laws in the context of ever closer European union, based on the European Charter of Fundamental Rights. “We will have a whole corpus of EU law dropped into our laps, where the CJEU will be integrating it against the policy objectives of the EU and the UK parliament might take a different view, and we would like to know what it is.”
He added: “This needs to be debated. I know it would make working this out now more difficult, but putting that off and leaving it to the judges – I think there are fairly strong views amongst most of us that we don’t want to be landed with making policy decisions.”
Lord Thomas said that the last thing he would want would be for the “opprobrium” produced by the EU court in some cases to be transferred to the British judiciary. “It depends what view you take to the role of the judge. I take probably a more conservative view in that I really do think it should be for parliament to say where it wants to go and what it should do.”
In his last appearance before stepping down from the post at the end of this month, Lord Thomas added that there was a “really serious risk” to the quality of the judiciary unless action was taken on judges’ pay and conditions. He hoped that a review by the Senior Salaries Review Body would improve the situation when it reports next summer.
“We are short of High Court judges. One thing we can’t do is compromise on quality … But there is a serious problem at the level of the High Court. It is clear that the administrative court is being slightly affected by a shortage of High Court judges,” he said.