So far from being an arrogant, self-aggrandising, Brexit-sabotaging “enemy of the people”, the British judiciary, it seems, wants nothing more than to be told what to do by Parliament.
One of the too-many careless errors made by the Government in its mishandling of this issue was to leave utterly unresolved the status of the European Court of Justice in the Repeal Bill. Given the neuralgic effect even a mention of the ECJ can have on Conservative MPs, it is rather surprising to find such a laissez-faire attitude enshrined in the bill, such that no UK court will need to have regard to decisions of the ECJ post-Brexit – but may do so if it considers it appropriate. That is hopelessly vague.
Lord Neuberger, who stands down as Supreme Court president next month, has done his public duty as a lawyer, still more as a man of common sense, to point out to ministers the obvious danger of handing such sweeping powers to British judges, who, in due course, will indeed be blamed and vilified almost whatever course of action they take. The problem arises, for example, in employment law. If the UK-EU trade deal eventually stipulates that workers in Britain should enjoy the same or equivalent rights as those in EU member states, and the ECJ makes a judgement that clarifies European laws and rules, then to what degree is a British judge obliged to follow what the ECJ says? In effect the ECJ is making new law, but is Westminster prepared to allow British judges to follow suit? If so, what’s left of the parliamentary sovereignty then? Law making will simply have been transferred from the ECJ to a puppet organisation in the UK, namely the British judiciary, and, in fact if not in name, the ECJ’s rule-making and interpretation of EU law will continue to be binding on British citizens and companies. (Except that the UK will no longer have a voice or votes on such laws in the European Council or European Parliament).
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This is not the same issue, as it is sometimes stated, where there is a dispute over trade, which can be relatively easily decided by a joint ECJ-Independent tribunal, as with any disputes that arise between those members of the old EFTA who are also in the EU Single Market, such as Norway. This is a matter of making or breaking domestic UK laws. The judge is right in saying that Parliament cannot allow the judiciary to guess what it must…