Parliament must urgently clarify the future of the UK’s legal
system after Brexit, a new by the Institute for
Government (IfG) report argues.
The report, Brexit and the European Court of
Justice, says that ministers have left fundamental
questions unanswered on the status of European Court decisions
after the UK leaves the European Union.
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.
Jill Rutter, Brexit Programme Director at the Institute for
Government, said:
“The Prime Minister has promised to end the jurisdiction of the
European Court of Justice. If only it were that simple. The
court’s role is not one issue but many, and the Government so far
has only come up with some of the answers. As MPs gear up to
scrutinise the Repeal Bill, they should adopt a more
comprehensive approach to avoid a legal muddle after we leave the
EU.”
Raphael Hogarth, report author, said:
“Parliament should protect the independence of the UK judiciary
by ensuring that responsibility for setting the terms of the
post-Brexit constitutional order is seen to rest firmly in
Westminster, not beneath a wig.”
