The Government's position on British law after Brexit is worryingly vague

Maybe before too long we will actually start to miss the Court of Justice of the European Union for its crystal clarity of status and purpose

Will the UK still follow the guidance of the European Court of Justice after we leave the EU? (Rex)

So far from being an arrogant, self-aggrandising, Brexit-sabotaging “enemy of the people”, the British judiciary, it seems, wants nothing more than to be told what to do by Parliament.

One of the too-many careless errors made by the Government in its mishandling of this issue was to leave utterly unresolved the status of the European Court of Justice in the Repeal Bill. Given the neuralgic effect even a mention of the ECJ can have on Conservative MPs, it is rather surprising to find such a laissez-faire attitude enshrined in the bill, such that no UK court will need to have regard to decisions of the ECJ post-Brexit – but may do so if it considers it appropriate. That is hopelessly vague.

Lord Neuberger, who stands down as Supreme Court president next month, has done his public duty as a lawyer, still more as a man of common sense, to point out to ministers the obvious danger of handing such sweeping powers to British judges, who, in due course, will indeed be blamed and vilified almost whatever course of action they take. The problem arises, for example, in employment law. If the UK-EU trade deal eventually stipulates that workers in Britain should enjoy the same or equivalent rights as those in EU member states, and the ECJ makes a judgement that clarifies European laws and rules, then to what degree is a British judge obliged to follow what the ECJ says? In effect the ECJ is making new law, but is Westminster prepared to allow British judges to follow suit? If so, what’s left of the parliamentary sovereignty then? Law making will simply have been transferred from the ECJ to a puppet organisation in the UK, namely the British judiciary, and, in fact if not in name, the ECJ’s rule-making and interpretation of EU law will continue to be binding on British citizens and companies. (Except that the UK will no longer have a voice or votes on such laws in the European Council or European Parliament).

This is not the same issue, as it is sometimes stated, where there is a dispute over trade, which can be relatively easily decided by a joint ECJ-Independent tribunal, as with any disputes that arise between those members of the old EFTA who are also in the EU Single Market, such as Norway. This is a matter of making or breaking domestic UK laws. The judge is right in saying that Parliament cannot allow the judiciary to guess what it must do, or else we will end up with an even worse muddle than the one we are heading for anyway.

The bill ought also to address those cases going to appeal in Europe that originated when the UK was in the EU and under the ECJ, but will be sent to the ECJ for judgment between now and 30 March 2019 (the putative date for Brexit), and indeed after 30 March 2019 – and the ECJ should also make clear whether it wishes to adjudicate on cases that turned on a point of European law as enunciated by the ECJ at a time when the UK was in the EU.

We may well end up with a situation where cases referred on appeal to the ECJ create precedents that can then not necessarily be followed in future, and in a culture where “binding” precedent means so much that again is a sure recipe for confusion. As ever, only the bank balances of solicitors, barristers and advocates will benefit from this unholy chaos.

The law, never easy to manage, make or judge upon, has plainly not had anything like the attention it deserves from the Ministry of Justice or the various other departments involved in the Brexit process. The unlikely question arises; where is Justice Secretary David Lidington when his nation needs him?

It is all very well condemning the ECJ as some sort of alien impost on Britain’s long history as an independent nation making its own procedures (that is when the ECJ is not being mixed up with the entirely separate European Court of Human Rights, not an EU institution anyway, and which the UK will, probably, continue to be party to). But what the British seem not to have much of a clue about is what their future independent procedures will be. Maybe before too long we will actually start to miss the ECJ for its crystal clarity of status and purpose. What was that about “take back control”, Theresa May?