Brexit and the European Court of Justice

Brexit and the European Court of Justice argues that ministers have left fundamental questions unanswered on the status of European Court decisions after the UK leaves the European Union; as a result, Parliament must urgently clarify the future of the UK’s legal system after Brexit. 

The Government has said that pre-Brexit decisions of the European Court will be incorporated into UK law, but has not said how British judges should treat future decisions. This could leave judges exposed to a fierce political battle.

With the Repeal Bill set to go before MPs imminently, the report urges Parliament to avoid dangerous ambiguity in the legal system by instructing UK courts to take account of post-Brexit European Court of Justice decisions when they are relevant.

This would mean European Court decisions were no longer binding on UK courts in line with the Government’s ambition to take “back control of our laws” after Brexit. It would also allow British judges to draw on helpful precedents as they do from other foreign courts.

The report says the role of the European Court of Justice could be a serious stumbling block in the Brexit negotiations because the EU will want it to be the final arbitrator on the rights of citizens and the divorce bill.