Judges fear being dragged into political controversy by the government’s flagship EU withdrawal bill allowing them to take account of rulings of the top EU court after Brexit, a prominent QC has warned.
The EU (Withdrawal) Bill, which is going through parliament, makes clear that domestic courts will no longer be bound by new Court of Justice of the European Union (CJEU) rulings after Brexit.
However, it states that where appropriate domestic judges will be able to consider the Luxembourg court’s findings on EU laws that have been “retained” by the UK.
The crossbench peer and barrister Lord Pannick, QC, of Blackstone Chambers in the Temple, warned that this could expose UK judges to political challenge from both supporters and critics of the EU. He said it might be better to state that UK courts should normally follow the judgments of the CJEU.
Speaking at a hearing of the House of Lords constitution committee, Lord Pannick said his impression of the concern of judiciary “is that the bill as drafted would impose on them what is a very sensitive and in many cases political choice to make as to what weight to give to judgments of the Court of Justice post-exit on the meaning of retained law.
“They don’t want to make decisions which would expose them to challenges by those who are pro-Europe or anti-Europe.
“It might be better to say in the bill that the courts of this country should normally, but not always, follow judgments of the CJEU given post-Brexit on retained law.”
However, the solicitor-general, Robert Buckland, QC, told the committee: “Anything which would lead a court to consider itself bound by the jurisdiction of Luxembourg would contradict the aim of Brexit.”
A series of senior judges have expressed concern about their role after Brexit.
We don’t want to have to decide what weight we have to give to Luxembourg judgments
Baroness Hale of Richmond, president of the Supreme Court, told The Times last month that the her court was looking for guidance on aspects of its role after Brexit. She highlighted “the impact of Luxembourg judgments on the domesticated EU law”.
She added that “there are all sorts of issues. We don’t need to be told what answer to come to, but we do need to be told how to approach the cases. We don’t want to have to decide what weight we have to give to Luxembourg judgments — it is preferable for parliament to tell us.”
Lord Burnett of Maldon, the lord chief justice, told a press conference this month that “I hope we can get clarity”. And previously, Lord Neuberger of Abbotsbury, then president of the Supreme Court, said that the court was looking for guidance on aspects of its role after Brexit.
However, Jeremy Wright, QC, the attorney-general, recently told The Times that he saw no need for guidance on how judges were to interpret the law after Brexit. “If the process is to transfer all these EU rules and regulations into domestic law, then they will simply apply the principles they apply now to domestic law. And they are well practised at doing that,” he said.