The President of the Supreme Court Lord Neuberger has said the UK government will need to clarify how decisions of the Court of Justice of the European Union (CJEU) should be interpreted by UK courts following Brexit.
The CJEU most commonly rules on how EU laws should be interpreted; national courts of EU Member States can refer questions to the CJEU on the interpretation of specific aspects of EU law which apply to specific case(s) before them. This often happens in cases involving intellectual property. The CJEU will then consider the questions put to it and provide a judgment on them; the national court then reaches a decision by applying the judgement of the EU in the case before it. The courts of all EU Member States are bound to follow rulings of the CJEU, regardless of which national court referred the question(s) in any given case.
Last month the government signed "the Great Repeal Bill" which will mean that all existing EU legislation will be transferred to UK law. The bill states that UK courts can "amend, repeal and improve" the existing laws as necessary. The UK government has stated that the CJEU referral procedure should end for cases that have not already been referred when Brexit takes force; UK Courts will no longer refer questions to the CJEU. However, it is unclear what judges should do about future decisions of the CJEU after Brexit. The Repeal Bill states that UK courts do not need to follow decisions of the CJEU (referred to it by remaining member states of the EU) after the UK has left the EU but that any court "may do so if it considers it appropriate".
Lord Neuberger said in an interview with the BBC that the UK government will need to be very clear about how adherence to CJEU decisions will or should change post Brexit. He said "we can't have some judges moving away from the EU position whilst others continue to apply" it. He stated that a "clear policy is therefore needed, which may be an opportunity for the UK to obtain a competitive advantage in Europe if it is no longer obliged to apply a future unsatisfactory CJEU decision."
The essence of Lord Neuberger's message appeared to be that, without further clarity, it is likely that different judges with give varying weight to CJEU decision post Brexit, and the inevitably uncertainty that would flow from that is not desirable.
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