Britain’s Supreme Court would like clearer guidance from parliament on how it should deal with European Union court judgments after Brexit, its new president said on Thursday.
The issue of what weight, if any, judgments of the European Court of Justice (ECJ) will have in British law after the UK leaves the EU is one of many thorny areas in the Brexit negotiations.
Brenda Hale, who was sworn in as President of the Supreme Court on Monday after serving as one of its justices for 13 years, said she and her colleagues were looking for guidance from parliament on the issue.
“We hope that the EU Act, when it’s eventually passed, will tell us what we should be doing – giving us the power to take into account, or saying we must take into account, or saying we must ignore.
“Whatever parliament decides we should do, we would like to be told because then we’ll get on and do it,” she said.
A government policy paper issued in August said Britain wished to leave the “direct jurisdiction” of the ECJ while also recognising that future civil judicial cooperation would need to take into account “regional legal arrangements” such as the ECJ.
The EU said that for certain issues such as the rights of EU citizens in Britain, the ECJ must continue to have its say – a stance strongly rejected by the most ardent advocates of Brexit.
Ms. Hale said that the government policy papers issued over the summer were “at quite a high level of generality” and described them as inspirational.
But she praised the formulation used by Prime Minister Theresa May in a major speech on Brexit in Florence on September 22.
Ms. May said that where there was uncertainty around EU law, she wanted UK courts to be able to “take into account” ECJ judgments.
‘Take account’ is quite useful because it does give one the power to take it into account, but also the power to say ‘for the following good reasons, we think something else,” said Ms. Hale.
Her deputy, Jonathan Mance, said the form of words used in the EU Withdrawal Bill currently going through parliament was “a weaker formula”.
The bill says that British courts “need not have regarded to anything done on or after exit day by the European Court, but may do so if it considers it appropriate to do so.”