One of the big justifications for Brexit was for the UK to take back its national sovereignity and get out from under the supposedly oppressive thumb of the European Court of Justice.
Reader vlade sent us a not-very-clear BBC story that still manages (despite a headline obscuring the issue) to highlight yet another way Brexit appears unlikely to live up to its billing.
The Great Repeal gives judges the option of using European court rulings as precedent post Brexit. I am not making that up. From the BBC, based on an interview with the UK’s Supreme Court president, Lord Neuberger:
When the UK leaves the EU, the ECJ will continue to develop law on everything from consumer rights to discrimination – from things like compensation for airline passengers to transgender rights.
The government’s Repeal Bill states that UK courts do not have to pay any heed to decisions of the ECJ after the UK has left the EU – but any court “may do so if it considers it appropriate”.
Bear in mind that the UK accepts the proposition that pre-Brexit ECJ decisions will retain their status as precedents post Brexit:
The EU’s position document that deals with governance issues around the withdrawal agreement says all Court of Justice rulings would be enforceable in the UK.
The government has said its repeal Bill – also known as the European Union (Withdrawal) Bill – will ensure that historic judgements of the ECJ will be given the same binding or precedent status in our courts as decisions of our own Supreme Court.
These judgments extend some rights in areas including the calculation of holiday pay for UK workers.
The Supreme Court rarely departs from one of its own decisions and so historic rulings of the ECJ will be binding upon it in almost all situations.
But letting UK judges opt to look to new ECJ rulings post Brexit tis politically problematic, to put it politely. The article points out earlier on that:
Prime Minister Theresa May has insisted the ECJ should have no jurisdiction over the UK after Britain leaves the EU.
I am sticking my neck out a bit in the hope that readers who know something about legal practice in the UK and Continent can pipe up. European countries ex ones like Cyprus that choose to rely on English law operate on a civil law system. A key difference is that precedents are given less importance than in a common law system like the one in the US and UK. It would be helpful for readers to indicate whether ECJ rulings tend to be applied narrowly or more broadly in subsequent lower court cases in Europe.
The sticky part would seem to be that if one UK judge decides to use an ECJ ruling to support his verdict, then the ECJ decision he relied on becomes a UK precedent if it was important to the basis for his ruling.
Lord Neuberger does not like the ambiguity. Quoting the BBC story:
“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.”
And what the Government spokesperson is trying to fob off on the media is apparently not what the Repeal Bill actually says:
A government statement 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.”
Given how much is up in the air about Brexit, I wonder if this issue will get the attention it warrants. But this example suggest the Repeal Bill will be full of nasty inconsistencies that won’t get ironed out due to the press of time.