Out-Law / Your Daily Need-To-Know

Out-Law News 2 min. read

Judges could be drawn into policy disputes without changes to Brexit bill, senior judge warns


Judges could inadvertently be drawn into disputes over policy matters that should be left to parliament without changes to the UK's draft EU withdrawal legislation, one of the country's most senior judges has warned.

Recently-retired UK Supreme Court president Lord Neuberger has criticised the clause in the European Union (Withdrawal) Bill which, as currently worded, would allow judges to take into account EU decisions made after the date that the UK formally exits the bloc "if it considers it appropriate to do so". He told the House of Lords constitution committee that this wording could lead to judges having to take into account economic or political factors when making their decisions.

Neuberger told the committee that these were factors that judges were "not naturally the people to take into account", he told the committee, in comments reported by Reuters.

"It puts them very much into policy areas where on the whole the tradition in the country has been to keep them out," he said.

Giving an example, Neuberger said that the courts could run into conflict if they were asked to decide on a point dealing with the right to trade between EU member states, which had already been decided by the Court of Justice of the EU (CJEU). In such a case, they may find themselves having to take into account "the fact that if they decided differently from the EU court it would affect trade between the UK and the EU, or possibly financial arrangements or City interests, or that it may affect political interests or international relations between the UK and EU", he told the committee.

He said that parliament needed to provide more precise guidance on the extent to which judges could and should take such factors into account.

The European Union (Withdrawal) Bill provides for the repeal of the 1972 European Communities Act, which gives recognition to the superiority of EU law in the UK. It also transfers any legislation applicable in the UK through EU law at the point of exit directly onto the UK statute book, while granting ministers extensive powers to 'correct' the statute book through the use of regulations.

The bill, as currently drafted, states that courts in the UK will "not be bound by any principles laid down, or any decisions made, on or after exit day by the European court" and will no longer be able to refer matters to EU courts after that date. It also states that the UK's courts and tribunals "need not have regard to anything done on or after exit day by the European court, another EU entity or the EU but may do so if it considers it appropriate to do so".

Richard Bull, a parliamentary agent and public policy expert at Pinsent Masons, the law firm behind Out-Law.com, said that Neuberger had made an important point to the committee.

"Judges generally resist being drawn into writing policy into a vacuum," he said. "Most are, as Neuberger put it, 'psychologically' disinclined to that task. Sceptics might, however, argue that judges have always had an eye to political and economic factors in reaching decisions. Neuberger acknowledges that the task of making the bill 'completely satisfactory' is rendered very difficult because of time pressures, political realities and the hugely complex nature of the task."

The bill is due to proceed to committee stage in the House of Commons for line-by-line scrutiny, starting on 14 November 2017. The bill received the backing of the House of Commons in a second reading vote in September, although MPs have put forward over 150 potential amendments to the draft legislation.

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.