UK: QC warns against making judiciary political targets with ECJ consideration clause

A QC has warned that judges are concerned they will be drawn into the Brexit debate by proposed measures that permit them to take account of European Court of Justice (ECJ) rulings after the UK leaves the EU.

The EU Withdrawal Bill provides that while UK courts will not be bound by Luxembourg after Brexit they can still consider its jurisprudence on laws which have been “retained” by the UK.

Crossbench peer Lord Pannick QC has suggested domestic courts should follow decisions of the ECJ in order to prevent judges from being drawn into political debates between supporters and detractors of the EU.

Lord Pannick told the Lords Constitution Committee: “The concern, I think, of the judiciary is that the bill as drafted would impose on them what is a very sensitive and in many cases political choice to make as to what weight to give to judgments of the Court of Justice post-exit on the meaning of retained law. They don’t want to make decisions which would expose them to challenges by those who are pro-Europe or anti-Europe.

“It might be better to say in the bill that the courts of this country should normally, but not always, follow judgments of the CJEU given post-Brexit on retained law.”

But Robert Buckland QC, the Solicitor General, told the committee: “Anything which would lead a court to consider itself bound by the jurisdiction of Luxembourg would contradict the aim of Brexit.”

The Attorney General, Jeremy Wright QC said: “If the process is to transfer all these EU rules and regulations into domestic law, then they will simply apply the principles they apply now to domestic law. And they are well practised at doing that.”