Brexit: Supreme Court President calls for greater clarity on legal ramifications of EU withdrawal

Lord Neuberger says it would be unfair to blame judges for making law ‘when Parliament has failed to do so’

The most senior judge in the UK has warned of confusion in the courts because of a lack of clarity over how they should treat EU law after Brexit.

Lord Neuberger said the Government must give greater certainty over how judges should treat rulings from the European Court of Justice.

The President of the Supreme Court said ministers risk creating a situation in which judges are blamed for “making up the law” because Parliament failed to.

It comes as Theresa May is expected to set out a series of positioning papers over the summer, with the first expected as early as next week on future customs arrangements.

Ministers have made clear that the ECJ’s jurisdiction will end after Brexit, but have also said UK judges should continue to interpret the European Court’s case law.

Lord Neuberger told the BBC: “If the Government doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.

“But to blame the judges for making the law when Parliament has failed to do so would be unfair.”

The Government’s Repeal Bill to be voted on in September says no UK court will need to have regard to decisions of the ECJ post-Brexit, but may do so if it considers it appropriate.

Lord Neuberger, who stands down as Supreme Court president next month, said all judges would hope and expect Parliament to “spell out in statute” how the judges should approach areas of European law.

A Government spokesman said: “We have been clear that as we leave the EU, the direct jurisdiction of the European Court of Justice in the UK must come to an end.

“However, we want to provide maximum certainty so the Repeal Bill will ensure that for future cases, UK courts continue to interpret EU-derived law using the Court of Justice of the European Union’s case law, as it exists on the day we leave the EU.”

Liberal Democrat Brexit spokesperson Tom Brake said: “Judges have already been branded ‘enemies of the people’ for daring to challenge Theresa May’s plans to force through an extreme Brexit with no accountability.

“Now the Government’s inability to set out clearly how, whether or when ECJ rulings should be taken into account risks leaving judges in the firing line yet again. The Government must provide greater clarity in the Repeal Bill over the role the ECJ will play post-Brexit.”

Downing Street is expected to publish a series of positioning papers in coming weeks setting out more detail around its Brexit plans ahead of further talks with Brussels.

Papers dealing with future customs arrangements and issues around the Irish border are expected as early as next week.

The Prime Minister is then expected to make a speech at the end of the summer giving more details on her proposals on the initial divorce stage of Brexit.

Number 10 played down claims that it is planning to suggest paying £36bn to settle financial with Europe and move talks onto discussions of future arrangements.