10 August 2017

The President of the Supreme Court made an extraordinary intervention of the status of European Court of Justice (ECJ) judgments after Brexit. Raphael Hogarth explains how Parliament could provide more clarity.

Lord Neuberger has called for greater clarity over ECJ judgments after Brexit

Lord Neuberger, the outgoing president of the UK Supreme Court, made an extraordinary intervention over the Government’s Brexit plans earlier this week. In an interview with the BBC, he said that "If [the Government] doesn't express clearly what the judges should do about decisions of the European Court of Justice after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.”

It would be “unfair”, he said, “to blame judges for making the law when Parliament has failed to do so”. The judiciary would “hope and expect Parliament to spell out how the judges would approach that sort of issue after Brexit, and to spell it out in a statute".

Responsibility for setting the terms of Brexit should be seen to rest in Westminster, not beneath a wig

The danger Lord Neuberger highlights looked very serious when the Government set out its initial plans for the EU (Withdrawal) Bill, known at the time as the Great Repeal Bill, in March. The White Paper made no mention of how the courts should use judgments of the ECJ handed down after Brexit.

The Institute for Government (IfG) argued in a recent analysis paper that, if Parliament were silent on that question, it would risk leaving judges stranded on the front line of a fierce political battle.

The Government’s silence did not persist, however. When the EU (Withdrawal) Bill was finally published after the election, it included a provision on future ECJ judgments: “A court or tribunal 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.” (Section 6(2)).

Lord Neuberger’s remarks suggest he is dissatisfied with Section 6(2), as this is the provision on which the status of future ECJ jurisprudence hangs. Why might that be?

The Government’s steer to judges could be more specific on the ECJ

One possibility is that the instruction in Section 6(1) leaves too much to judges’ own discretion. By telling them they “may” have regard to ECJ decisions when they consider it appropriate, it might be argued, the bill only manages to be explicit about passing the buck to the judiciary.

Lord Neuberger, as a senior judge, is not in a position to recommend alternative policy options in public. If this is his worry, however, then those who agree with Lord Neuberger should propose something better.

The graphic below shows some options open to Parliament for how to instruct the judiciary. It is not intended to be fully exhaustive of the options, nor to recommend a precise sentence structure to the Government or to Parliamentary draftsmen. But it shows some of the key decisions that Parliament has to make.

The EU (Withdrawal) Bill and the ECJ

(Note: Some grammatical modifications have been made to the language of Section 6(1) for ease of illustration)

Option 1: The EU (Withdrawal) Bill as it is currently worded

The formulations selected by the Government in Section 6 of the bill as it currently stands are in red. 

Option 1: The EU (Withdrawal) Bill as it is currently worded

Option 2: Ignore the ECJ

Parliament could instead opt to instruct judges to ignore future ECJ decisions, highlighted in red below.

The Institute for Government advised against this option as it would deprive UK judges of potentially helpful reasoning used by the ECJ.

UK courts regularly invoke the judgments of foreign courts in any event. 

Option 2: Ignore the ECJ

Option 3: Bound by ECJ judgments

Parliament could also opt to make future ECJ decisions binding, as shown in red below.

This would not be compatible with the Government’s objective of ending the jurisdiction of the ECJ after Brexit. 

Option 3: Bound by ECJ judgments

Option 4: Must, not may

That leaves Parliament with an option between those extremes. One way of strengthening the instruction would be to tell judges they “must” or “shall” take a certain approach, rather than that they “may”.

Option 4: Must, not may 

Some experts believe the clearest instruction would be to tell the courts they must regard ECJ decisions as persuasive. That is because ‘persuasive authority’ is a recognised part of the grammar of precedent. To use this language would give judges no new legal concepts to interpret and develop. Legal sources that currently have persuasive authority include:

  • Decisions of the Judicial Committee of the Privy Council (the court of final appeal for the UK overseas territories and Crown dependencies);
  • Decisions of foreign courts; and
  • Obiter Dicta (comments made by a judge ‘by the way’ that are not essential to a judgment, but are nonetheless included within the judgment document).

However, this may not be considered compatible with the Government’s objective of ending ECJ jurisdiction.

The remainder of the Government’s options are, in the opinion of most legal experts interviewed by the Institute for Government, much of a muchness. Telling judges that they must take ECJ judgments into account where they consider them relevant has the advantage of replicating the instruction in the Human Rights Act (1998) on how to treat decisions of the European Court of Human Rights (Section 2(1)).

This, again, would limit how much new work the judiciary has to do in developing a new legal concept. It could also prove to be politically explosive, given recent debates about the Human Rights Act.

It is arguable that “relevant” is a slightly stronger requirement than “appropriate”, since this rules out any scenario in which, though an ECJ judgment is relevant to the case at hand, a British judge nevertheless elects not to take it into account because the judge does not, for whatever reason, consider it “appropriate” to do so.

It is also arguable that “take into account” and “pay due regard to” are slightly stronger requirements than “have regard to” – but these differences are probably on the margin.

Parliament must be clear on its intent, but the ECJ’s role will only be settled after the negotiation

The EU (Withdrawal) Bill will be subject to heated debate in both the Commons and the Lords. 

It is in everyone’s interests that the final Act has a formulation that both politicians and judges can accept.

One of the great challenges for the EU (Withdrawal) Bill is the need legislate in advance of negotiations. It is possible that ministers will broker a deal that gives the ECJ a role that differs from what is provided in the bill, during a transitional period or in the long term.

The EU (Withdrawal) Bill, as introduced, would give ministers powers to change the ECJ’s role in UK law completely at the last minute, in order to implement the Brexit deal they have negotiated (Section 9(1)).

Those powers could be watered down by amendments when the bill is debated, but Parliament may nonetheless decide to make changes to the ECJ clauses when the content of the Brexit deal becomes clearer.

As the Institute for Government argued in Brexit and the European Court of Justice, Ministers and MPs should do all they can to maximise clarity in the EU (Withdrawal) Bill. But the heavy lifting may come later. 

Comments

The bill at first reading refers to "anything done on or after exit day by the European Court, another EU entity or the EU", which surely leaves it open to a plaintiff to claim that a decision by the new European Widgets Commission is of profound significance, and potentially the UK supreme court to declare that it is or isn't.

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