Future role of CJEU for UK courts should be 'spelled out' in statute, says top judge

In an interview with the BBC, retiring Supreme Court president Lord Neuberger said that judges "would hope and expect parliament to spell out how [they] would approach that sort of issue after Brexit, and to spell it out in a statute".

The government's European Union (Withdrawal) Bill will have its second reading in the House of Commons after the summer recess. It 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.

The draft legislation 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".

It was this wording in particular that was highlighted by Lord Neuberger in his BBC interview.

"If the UK parliament says we should take into account decisions of the [Court of Justice of the European Union (CJEU)] then we will do so," he said. "If it says we shouldn't then we won't. Basically, we will do what the statute says."

"If [the government] doesn't express clearly what the judges should do about decisions of the [CJEU] after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair," he said.

The EU (Withdrawal) Bill was drafted to give effect to a three-point plan for converting EU law applicable to the UK into domestic law at the point that the UK's exit from the EU takes effect. It provides for the repeal of the 1972 European Communities Act, which gives recognition to the superiority of EU law in the UK, and the transfer of any legislation applicable in the UK through EU law at the point of exit directly onto the statute book.

The bill would also give the same status in the UK courts to historic CJEU decisions as to decisions of the UK's highest domestic court, the Supreme Court. This would mean that CJEU decisions could not be overruled by the lower courts in England and Wales, Scotland and Northern Ireland. In its white paper on exit arrangements, published in March, the government said that it expected the Supreme Court to take a "sparing approach" to departing from CJEU case law, in the same way as is the case for its own decisions.

The EU has published its own negotiating guidelines for the UK's exit from the EU. The guidelines indicate that the EU wants to try to negotiate a different arrangement to that proposed in the UK's white paper, in which the CJEU would "remain competent to adjudicate" in procedures pending before it on the date of Brexit that involve the UK, or "natural or legal persons" in the UK.