The UK Supreme Court after Brexit

I hear that the UK Supreme Court wants more clarification from Parliament over how to judge matters after we have left the EU.

The proposed guidance set out in the European Union Withdrawal Bill seems very clear to me. It says that after we have left UK judges no longer have to follow new judgements by the European Court of Justice, but may do so if they think they are sensible from the UK point of view.

This applies when a case comes before the UK Supreme Court that relates to a UK law which was until we left an EU law which we have now adopted as a national one. The Supreme Court can decide as it sees fit. If there has been a new case before the ECJ that changes the EU’s law the UK Supreme Court can if it wishes make the same change to UK law, or can decline to do so. These are experienced and senior judges who often like to change UK made law. It is a Court which is certainly not cowed by Parliament, as we saw when it told us how to go about leaving the EU and how to approve the sending of the Article 50 letter. It will be able to exercise similar independent judgement about what were EU laws once we have left.

Given the pro EU attitudes of many of our judges this means they would be free if they wish to follow ECJ judgements all the time we keep the unamended EU law as part of our UK law code. If they do so in ways which no longer suit the UK people then of course the UK Parliament will intervene and amend the law to override the Supreme Court judgement, as we can do today on UK made laws.

What is unclear about this? We will expect our Supreme court to be supreme when it comes to interpreting laws, which will mean former EU laws as well as nationally conceived laws. We will also expect Parliament to be sovereign. If the judges make a judgement that does not please Parliament can always change the law and issue new instructions.

At the moment both Parliament and our judges are impotent to change , amend or improve an EU law if the European Court of Justice has decided.
We do not at the moment expect our Supreme court to follow decisions of the US Supreme Court where they amend US laws where we may have a similar law.We trade a lot with the USA but keep our independent legal system. So why would the ECJ be any different when we are out of the EU?

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104 Comments

  1. Duncan
    Posted August 9, 2017 at 5:25 am | Permalink

    Institutions like the UK Supreme Court are populated by people, otherwise they would be of no use. A simple point to make but a relevant one. When we make reference to institutions it is meaningless unless we name those specific individuals who run these institutions. It is these people we should be naming rather than making reference to an inanimate construct

    So, again. Name these people

    It is evident that the UK Supreme Court, a pro-EU institution, is letting it be known that they (names?) will continue to follow ECJ rulings when arriving at their judgements. This is effectively a challenge to the will of the people and a snub to the political class by a closeted group of pro-EU professionals who resent being told what to do.

    The solution is simple. Parliament must impose its will without a flicker of emotion. Charles I paid a heavy price when he chose to challenge the sovereignty of the people and their Parliament.

    • eeyore
      Posted August 9, 2017 at 7:53 am | Permalink

      Lord Neuberger, whose observations provoked this controversy, retires from the presidency of the Supreme Court this year. I doubt his successor will have much difficulty in practice knowing what laws to apply, nor that HMG, Parliament or public opinion will be at a loss if dissatisfied with the court’s post-Brexit decisions.

      We are a pragmatic people with a profound instinct for legal forms, and have solved much greater problems than this before.

      In passing, I fear Duncan does a disservice to the memory of Charles I. In the constitutional theory of his day the people were not sovereign. “A subject and a sovereign are clean different things,” he told his judges, and they had no answer but violence.

    • Posted August 9, 2017 at 8:01 am | Permalink

      Hysterical rubbish. Lord Neuberger made cristal clear the Supreme Court will do what parliament tells it to. Away with your barmy conspiracy theories

      • Roy Grainger
        Posted August 9, 2017 at 1:40 pm | Permalink

        That’s how it works is it ? Parliament tell the judiciary what to do ? What was all that stuff about the judges telling parliament what to do over A50 then ?

        • Posted August 9, 2017 at 4:23 pm | Permalink

          You are badly misinformed, sir. The whole point of the case was stopping the government acting without the authority of Parliament.

    • NickC
      Posted August 9, 2017 at 10:19 am | Permalink

      Duncan, “… the UK Supreme Court, a pro-EU institution …” – I assume you are referring to the Miller case?

      The principle that the UKSC used – statutory rights enacted by Parliament cannot be removed by prerogative – is perfectly valid, and essential for our freedom. I agree that the point “enacted by Parliament” was stretching it a bit (EU Regulations by definition have not actually been enacted by the UK Parliament, only enabled by the ECA) but given the Metric Martyrs case it was difficult for the UKSC to find otherwise.

      However, it seems to me, that the Miller case means that when the EU now changes any of the existing (defined) statutory rights, Parliament must have a vote on the matter. In other words, has the Miller case already removed the UK from imposed EU jurisdiction and supremacy? Perhaps we need a test case?

      Reply I doubt the UK Supreme Court would offer symmetric judgements like that. They usually genuflect to the EU/ECJ

      Perhaps JR could comment?

      • margaret
        Posted August 9, 2017 at 6:27 pm | Permalink

        But what was the ECA 1972 based on.. not EU law!

  2. Alan Jutson
    Posted August 9, 2017 at 5:35 am | Permalink

    Given we are proposing to adopt all present EU Law which has already been added to our UK legal system to date, then surely that is the law that will be applicable.

    Case law will surely also be applicable on any of these laws to date, but not new EU case law decisions made after we have left.
    Only if politicians decide to modify any law presently on statute would those modifications apply.

    Judges do not make any law, they only decide on its interpretation.

    • Ian Wragg
      Posted August 9, 2017 at 9:38 am | Permalink

      That’s the problem. They decide on its interpretation. Usually legislation is so sloppy that the judges can skew it to their own agenda.
      It’s time Parliament woke up.
      Then again with so many who would do us harm populating the HoC what do we expect.

    • Lifelogic
      Posted August 9, 2017 at 2:56 pm | Permalink

      “Judges do not make any law, they only decide on its interpretation.”

      Not at all they often totally rewrite it so the black is white and white is black just as they see fit!

    • stred
      Posted August 9, 2017 at 3:32 pm | Permalink

      The trouble is that the way judges sometimes interpret the law is very different from the way most of us thought the law was meant to be interpreted, including MPs that voted for the law.

      These Supreme individuals seem to have been self- selecting to a point where any judge or QC caught reading any other newspaper but the Guardian would be noted as unsuitable material and denied promotion. No wonder the House of Cronies is stuffed with Remoaning plotters and the Supremes are grumbling.

      Junker’s junketers are currently threatening Poland with fines for changing their selection of Judges to reflect political views, as happens slowly in the US. They have the lawyers lined up and don’t want to upset the arrangement. Until we do the same, we will find the same liberal bias steering our interpretations and law being used to stand justice on its head.

    • Original Richard
      Posted August 9, 2017 at 8:51 pm | Permalink

      “Judges do not make any law, they only decide on its interpretation.”

      So what is “case law” then ?

      • Alan Jutson
        Posted August 10, 2017 at 7:54 am | Permalink

        Richard

        Exactly my point, case law is a record of interpretation, it is then used as guidance by others going into the future.
        If those who make the law (politicians) do not like the end result or the way it is being interpreted, they have the power to change the law to make the situation clearer.

  3. JM
    Posted August 9, 2017 at 5:45 am | Permalink

    Give the vilification that they received when the Brexit case was before them, you can’t blame them for seeking clarification. The problem, however, is not just for the Supreme Court. First instance judges will find themselves in the same position. Without the clarification we will have different judges going in different directions, which is bad for the orderly administration of justice and unfair on litigants. If you reserve the power to the Supreme Court you reserve it to the rich, which again is not fair. So I think Lord Neuberger has a point.

    • Denis Cooper
      Posted August 9, 2017 at 2:18 pm | Permalink

      Yes, the Miller case would have fallen at the first hurdle if only Parliament had laid down in the referendum Act what would ensue from a vote to leave the EU. The fault lay entirely with lazy and inattentive parliamentarians, rather than the judges who were then asked to clear up the mess the parliamentarians had created.

  4. Alan
    Posted August 9, 2017 at 6:21 am | Permalink

    What is unreasonable about the guidance given to the Supreme Court is that law is supposed to be about making precise distinctions between what is permissible and what is not. It’s not sufficient to tell the court that it can do one thing or another depending on how it feels on the day.

    This is another example of Brexiters being unwilling to face up to the consequences of their decision to leave the EU. They will always find someone else to blame for the adverse consequences. The Supreme Court presumably wants Parliament to take responsibility and issue explicit rules, whilst the Brexiters want the Supreme Court to be held to blame for the confusion that will result from imprecision.

    Reply On the contrary we are crystal clear i n how the new system will work. Judges need to be independent and show judgdement. They do not currently have to follow US Supreme Court judgements slavishly., and will not have to follow ECJ judgements in the future if they do not suit us.

    • Anonymous
      Posted August 9, 2017 at 8:48 am | Permalink

      We’re not being allowed what we wanted. So what ‘consequences’ are we meant to take the blame for ?

    • Denis Cooper
      Posted August 9, 2017 at 8:54 am | Permalink

      Rubbish, Alan, you should read Clause 6, linked below. Then maybe you could point out some flaw in the detail, which would be much more helpful and useful for your country than the usual generalised Remoaner whining. We are going to leave the EU and so the question now is whether you and others would prefer that step to benefit or damage your country. I have no time for those saboteurs who seek to cause as much damage as possible, I would not intern them or permanently deprive them of their citizenship but I would consider a long suspension of their voting rights.

    • sm
      Posted August 9, 2017 at 9:11 am | Permalink

      Alan, your assertion that ‘law is supposed to be about making precise distinctions between what is permissible what is not’ is naive in the extreme.

      All legislation is open to interpretation, must take into account topical circumstances, and is most certainly subject to the personality of the magistrate or judge in charge on the day.

    • NickC
      Posted August 9, 2017 at 10:03 am | Permalink

      Alan, “This is another example of Brexiters being unwilling to face up to the consequences of their decision to leave the EU.”

      Don’t all the other 168 countries currently not in the EU face the same “consequences”? You’re assuming “consequences” are “adverse”, which begs the question.

      Few laws are “precise” enough to cover all circumstances, that is what (at least partly) courts are for.

    • James Skinner
      Posted August 9, 2017 at 10:46 am | Permalink

      I don’t see how you have arrived at your conclusions.

      The process of statutory interpretation and the rules governing it are clear. They have been clear since a long time before I was born and, largely, a long time before this country joined the EU.

      The government has been clear that Judges will have to apply that process and follow the long established rules post-Brexit, while also benefitting from having the additional luxury of being able to take into account case law emerging from the ECJ along the way.

      The entire fuss coming from the Supreme Court sounds, as described by John, a contrived effort at laying the ground work for yet more Cantism & Wontism from the cabal of figures who are yet to accept the result of the referendum and get with the new program.

    • Posted August 10, 2017 at 9:33 pm | Permalink

      It is not the task of judges to “show judgement” in isolation. It is their task to apply the law to the facts of the case.

  5. agricola
    Posted August 9, 2017 at 6:28 am | Permalink

    Finding problems where they do not exist is a remainer sport. Though of low expectation it is designed to irritate. You explain the situation very clearly. There is a possible need for a tribunal of last resort where there are clashes between the ECJ and our supreme court. The debatable areas could involve citizen’s rights or trade. Why not consider asking the Donald to help out by lending such situations the benefit of the US supreme court.

    • zorro
      Posted August 9, 2017 at 8:20 am | Permalink

      They seem to have difficulty with the meaning of ‘Supreme Court’, but also it shows the subservient spirit. They still need to follow instructions from their spiritual mother (not Parliament in their case)….

      zorro

    • NickC
      Posted August 9, 2017 at 9:46 am | Permalink

      Agricola, There will be no “clash”. When we have left the EU our own Supreme Court will be the highest in the land (bar, in effect, Parliament), not the ECJ. But the SC can take into account judgements made in the ECJ, as elsewhere, if relevant, and if compliant to UK law.

  6. Bryan Harris
    Posted August 9, 2017 at 6:32 am | Permalink

    Sounds like more a case of certain people thinking the ECJ is somehow beyond reproach, which has never been the case… and these judges have to get used to thinking for themselves, with a British bias, and stop being lemmings

    • Longinus
      Posted August 9, 2017 at 7:59 am | Permalink

      One of the points made was that EU court judgments are sometimes unintelligible and irrelevant to the case or do not answer the legal question posed.

    • Denis Cooper
      Posted August 9, 2017 at 8:42 am | Permalink

      They want Parliament to provide clear directions beforehand rather than later having MPs complain that their judgments do not reflect the will of Parliament.

  7. Prigger
    Posted August 9, 2017 at 6:38 am | Permalink

    “… the UK Supreme Court wants more clarification from Parliament over how to judge matters after we have left the EU.”
    Same answer as when we are taking their Lordships to the seaside with their buckets and spades…”No, we are not there yet.”

  8. Prigger
    Posted August 9, 2017 at 6:53 am | Permalink

    The number of our citizens who somehow in their lives have managed to break a UK law including a traffic law or are thought by someone or other in authority to have committed a form of Hate Speech or even Thought Crime is so large in the minds of the public that there is no virtual space left for them to give a Judge’s Beak what the Supreme Court wants.

  9. oldtimer
    Posted August 9, 2017 at 7:06 am | Permalink

    Why indeed.

  10. NHSGP
    Posted August 9, 2017 at 7:13 am | Permalink

    On the Human Rights Act.

    Are you going to remove the right for the state to have slave labour ?

    Or are you going to reserve that privilege for MP?

    • Anonymous
      Posted August 9, 2017 at 3:50 pm | Permalink

      Every Act is a human rights Act. What are you talking about ?

  11. charlesD
    Posted August 9, 2017 at 7:27 am | Permalink

    We have been part of the ECJ for decades, we have hundreds of thousands of EU citizens living here and if we add in the millions of British who in their minds and their whole being adhere to being european and obeying european law as being supreme to UK law then you can see we have a problem. My children were all born during the time of the EU, in fact they have it stamped on their passports and in everything they do, some of them were educated in Europe, so it doesn’t matter what the UK courts decide, these courts will always be different than the ECJ to an awful lot of people. The only way around this is some kind of revolution of sorts which could be catastrophic for society as a whole- here we are playing with fire.

  12. Nig l
    Posted August 9, 2017 at 7:43 am | Permalink

    Yes, I thought for body that is supposed to be independent leading edge thinkers etc, their response was pathetic.

    My guess is that it was a not very subtle way of being anti Brexit as we know they are.

  13. Brian Tomkinson
    Posted August 9, 2017 at 7:45 am | Permalink

    Part of the continuing daily feed of negativity from those who are determined to keep us in EU and their propagandists in the media.

  14. Michael
    Posted August 9, 2017 at 8:14 am | Permalink

    I agree with your approach. The Supreme Court can take into account decided cases from other common law countries without parliament holding its hand and EU decisions should be treated in the same way.

    The losing party to a case is never happy and will complain the Supreme Court got it wrong. Academics do it all the time. If the Court sets a wrong precedent Parliament can step in with a correcting statute. Nothing constitutionally difficult about that.

  15. Iain Moore
    Posted August 9, 2017 at 8:25 am | Permalink

    How do all the other countries who don’t have the guiding hand of the ECJ manage? The sheer arrogance to think that a country like ours , with a Parliamentary Democracy which has been around for centuries, and Common Law stretching way back , could possibly manage our own affairs, or so goes the argument of the Remainers. The likes of Lord Neuberger, and other Remainers, refuse to believe that it is possible , and even if we explained it in words of one syllable to them, they would still find reasons why it isn’t possible. They didn’t vote for Brexit, they don’t want Brexit, and they will find fault with any plans for Brexit. Their sheer bloody minded intransigence means they have lost any right to be heard, and we should just ignore them.

  16. Christine
    Posted August 9, 2017 at 8:32 am | Permalink

    “….At the moment both Parliament and our judges are impotent to change, amend or improve an EU law if the European Court of Justice has decided.”

    My worry is that once these EU laws are brought into UK law our Government will be impotent to change them and we will be stuck with them. We seem to be ruled by socialist left wing do-gooders in both our Parliament and the judiciary. It’s time to put the people of this country first for a change.

  17. Denis Cooper
    Posted August 9, 2017 at 8:38 am | Permalink

    Very good that you’ve highlighted this, JR.

    It’s a long Clause 6 in the Bill here:

    https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf

    which starts:

    “(1) A court or tribunal –

    (a) is not bound by any principles laid down, or any decisions made, on or
    after exit day by the European Court, and

    (b) cannot refer any matter to the European Court on or after exit day.

    (2) A court or tribunal need not have regard to anything done on or after exit day
    by the European Court, another EU entity or the EU but may do so if it
    considers it appropriate to do so … ”

    It gets quite complicated and it would probably be a sensible idea to actually ask the judges whether they think it is clear enough before it is passed.

  18. Posted August 9, 2017 at 8:40 am | Permalink

    Two choices:
    1. Accept the Single (EU/EEA) Market and with it the ECJ.
    2. Leave the Single Market (and do not join EFTA which has its own court) and become a third country. Result: our economy will tank immediately.
    In the case of adopting the second course. any form of justice will be purely academic when the rioting begins in earnest.

    • Denis Cooper
      Posted August 9, 2017 at 2:09 pm | Permalink

      Mike, do try thinking for yourself rather than just reproducing the latest scare story from your mentor. You could start by recognising that the four EFTA countries are themselves “third countries” as far as the EU is concerned.

    • Longinus
      Posted August 9, 2017 at 2:10 pm | Permalink

      Yawn. Lots of opinion with few facts. How come the economies of many Eurozone countries are tanking inside the single market when plenty of third countries are flourishing?

    • Denis Cooper
      Posted August 9, 2017 at 2:54 pm | Permalink

      For example:

      https://ec.europa.eu/transport/modes/road/non-eu-countries_en

      “While road transport within the EU is harmonised and thus based on common EU rules, road transport between EU and non-EU countries (third countries) is still largely based on bilateral agreements between individual Member States and third countries. However, with certain countries, the EU has concluded agreements which take precedence over bilateral agreements.

      In road transport, there are two agreements of note:

      the Agreement on the European Economic Area (EEA Agreement) as regards transport with Norway, Iceland and Liechtenstein

      the Agreement between the EU and Switzerland on land transport.

      Both agreements provide for the application of the road acquis in the respective countries.”

      So there are the four EFTA member states, three of which are also members of the EEA, being highlighted by the EU as “third countries” with which the EU and its member states have notable agreements on road transport.

      I wonder if it will ever fully penetrate that if you leave the EU then as far as the EU is concerned you have become a “third country”, and you cannot escape that fate by joining EFTA or by staying in the EEA or by any other dodge.

  19. bigneil
    Posted August 9, 2017 at 8:59 am | Permalink

    There is something VERY wrong when a murderer, terrorism supporter or whatever can come here then use our own laws, then European rulings to fight deportation, to stay here for a life on the taxpayer. They do nothing and contribute nothing. Just sit and laugh as you hand them our taxes. Your party didn’t get enough votes at the election John – If you want more votes next time start throwing them out – no matter what they claim they face – and stop importing thousands more. Your party is kicking the (word left out ed) English electorate in the teeth – it’s about time WE – the voters – were put first.

  20. Bert Young
    Posted August 9, 2017 at 9:19 am | Permalink

    The Supreme Court is a subservient feature of the laws made by Parliament ; it is not a body entitled to make up its own mind . Post Brexit the ECJ will no longer apply and our independence is the only thing that matters . I see this as a black and white scenario with no grey areas .

    If our independence is not made clear there will be no credibility to the role of voters and democracy . Brussels and the EU may continue but not with us .

  21. Vanessa
    Posted August 9, 2017 at 9:29 am | Permalink

    A really good piece by Richard North today but his conclusions are not positive. If our MPs do not step up their understanding of the consequences of Britain leaving we will punish the Conservatives for a very long time.
    Here is what he says:
    “Tory MPs, in particular, need to be made aware that, if the government does get this wrong and we see a collapse in food exports, and empty supermarket shelves following the resultant chaos, the electorate will not be in a forgiving mood.

    The price of a botched Brexit could well be end of Tory governments for a generation, and even the break-up of the Conservative Party. And if they will not react to that, we will at least get some small satisfaction in the future by being able to say: “we told you so”.

    • Denis Cooper
      Posted August 9, 2017 at 2:05 pm | Permalink

      That is the nonsensical piece to which I have referred … what he is saying is that Juncker would refuse to sign the necessary amending regulations.

    • Longinus
      Posted August 9, 2017 at 2:13 pm | Permalink

      Perhaps we need the Tory party to fail before a true right wing party emerges. It would be preferable to continual socialism which is currently on offer.

    • Original Richard
      Posted August 9, 2017 at 9:27 pm | Permalink

      Please remember than Dr. North is an EU supporter pretending to be in favour of exiting the EU.

      Hence the endless criticism of Brexiteers and the replacement of optimism and positive ideas with project fear.

  22. Epikouros
    Posted August 9, 2017 at 9:37 am | Permalink

    The judges of the supreme court are either a bit dim or being deceitful. Now is hardly the time to ask such a question as Brexit negotiations are at far too early a stage to be able to give any meaningful answer to that question. A cynic would say that it smacks more of political intrigue than of honest enquiry. Question set so as to suggest that Brexit can only result in confusion and disarray. However it does remind us and hopefully the negotiators that a deal must be very clear cut so that afterwards there are not challenges to the legitimacy on how it’s provisions are interpreted.

    It does pose the question in that case perhaps that no deal is the best answer because then all law EU or otherwise is subject to what parliament decides it is and not what any existing treaty dependent on interpretation says it is..

  23. forthurst
    Posted August 9, 2017 at 9:38 am | Permalink

    What on Earth is this about? After we have left the EU and therefore the Single Market and therefore the competence of the ECJ, under what circumstances would the Supreme Court act to apply judgements of the ECJ directly? Cases are brought before the Supreme Court as a result of an appeal brought before a lower court in this country. Firstly, there will be no mechanism of appeal to the ECJ from this country and second what would be the mechanism by which judgments made by a foreign court were then automatically applied to English law to keep our laws in line with those of the Brussels regime without any action having taken place in a lower court here and following an appeal? Surely, the Supreme Court will not be issued with a rubber stamp with an instruction to keep our laws in line with the rulings of the ECJ without any guidance even in what areas those laws might relate? Trade? Product Merchantibility (does it savetheplanet, enough)? Immigration? Asylum? ThoughtCrime? What?

  24. RDM
    Posted August 9, 2017 at 9:41 am | Permalink

    Judge’s have no constitutional oversight!

    In this country their selection, their behavior, they go completely unchallenged!

    They should not have an automatic right to become a member of the Upper House. Either!

    Remember 8 to 3, even they are subject to Bias!

  25. Anonymous
    Posted August 9, 2017 at 9:41 am | Permalink

    Removal of Landing Cards.

    Anything actually Tory about this ‘Tory’ government ?

    Does it hate its voters ?

    Never mind. Of all the dropped policies we can change sex when we feel like it.

    Prepare for Corbyn.

  26. Jingle
    Posted August 9, 2017 at 9:42 am | Permalink

    Alistair Darling says “Alarm bells are ringing for the UK economy” When he became Chancellor in June 2007 it is pity he didn’t then have a big gong.

  27. graham1946
    Posted August 9, 2017 at 9:46 am | Permalink

    Why are they worried about this now? The present system will apply probably for donkey’s years if Hammond and co get their way and we stay in more or less indefinitely during a ‘transition’. Even when or if the EU laws are incorporated into our own system, nothing much changes – it will take parliament forever to change any of it. You say the UK parliament will intervene if any laws don’t suit the people. That’s a laugh, I sincerely doubt that. It may intervene if it cuts across something Ministers are doing, but otherwise I can see it staying in place ad infinitum. The ‘people’ don’t come much into governments’ thoughts unless it is election time and then are quickly forgotten afterwards.

  28. miami.mode
    Posted August 9, 2017 at 10:05 am | Permalink

    The anti-Brexit brigade will find fault with anything and everything they can.

    The antidote is to dot the i’s and cross the t’s.

  29. Jumeirah
    Posted August 9, 2017 at 10:10 am | Permalink

    It is very clear from what the retiring Judge (who brought this proposition up yesterday (?) said – that after 40 years (much less probably) of following ‘Directives’ from OVER THERE that our Judges are not capable of making sound judgement on a particularly matter and will not take responsibility for making decisions based on UK Law OR EU law. Given therefore that they have either option to draw upon but IF they feel the need to have a definitive clarification on this then this shows that they are not confident enough to use what supposedly is their great experience and understanding in reaching a reasonable and sensible decision based on the rule of Law both of which are or will be in our statute books then ‘their conundrum’ which makes them so indecisive should be taken away from them and UK rule of law applied. Better still – replace these individuals and encourage Judges who are not stricken with temerity to step forward and who are bold and will apply the law from either statute in the way that results in a fair, reasonable, workable outcome. There would appear to be too many backward looking/thinking individuals holding key positions in our Judiciary and they should GO

  30. GregH
    Posted August 9, 2017 at 10:18 am | Permalink

    If we go into a transitional period after march 2019 then ECJ law will still prevail. Whatever rulings are decided upon in UK courts after that date will still have to comply with EU law as well. This could all lead to confusion so the only way out is to have a clean break in March 2019 without any further transitional period and that means clear of the customs union as well. We will then be free to concentrate our trade with our new trading partners overseas under WTO rules or without WTO rules if necessary.

    • Denis Cooper
      Posted August 9, 2017 at 2:02 pm | Permalink

      “If we go into a transitional period after march 2019 then ECJ law will still prevail.”

      That entirely depends on what is agreed in the transitional provisions.

  31. DaveM
    Posted August 9, 2017 at 10:26 am | Permalink

    Quite simply, if the judges don’t consider themselves strong enough or clever enough to fo their job in the Supreme Court they should step down and make way for someone who is. The same goes for politicians. Starting with the PM, the Chancellor, and the Home Sec.

  32. RogerA
    Posted August 9, 2017 at 10:31 am | Permalink

    The USA has been seperate from our laws since 1780 and thats a long time which is a lot different from our position vis-a-vis the ECJ at the moment. The fact that so many British still hold EU citizenship and if they want to will continue to do so into the future only compounds the difficulty.

    • Denis Cooper
      Posted August 9, 2017 at 2:00 pm | Permalink

      But I think US courts have been known to refer back to pre-independence English law, just as Indian courts have referred to laws and cases under the Raj.

  33. Mark Cannon
    Posted August 9, 2017 at 11:23 am | Permalink

    A good analysis. English judges are used to looking at decisions in other common law jurisdictions (Australia, New Zealand, Canada etc) when “appropriate” but are not bound to follow them. A decision of the ECJ may be informative as to how a particular provision should be interpreted, but it should be open to our courts to take a different view. I know, like and respect Lord Neuberger, but I think he is protesting too much on this.

    • Posted August 10, 2017 at 9:40 pm | Permalink

      Why should our courts ever need to ask themselves what the proper interpretation of EU law is or should be when we have no intention of following, shadowing or being bound by EU law – which law applies exclusively to EU MS which post Brexit will not include us.

  34. Denis Cooper
    Posted August 9, 2017 at 11:23 am | Permalink

    Off-topic, having read yet another long, detailed, “unable to see the wood for the trees”, moan on another website, with dire predictions of an instant cessation of the existing trade in foodstuffs between the UK and the residual EU the day after we leave, and with empty supermarket shelves and widespread starvation and food riots, because then the UK would have become a “third country” in EU law, like 160-odd other countries around the world, including it should be said the blessed Norway and the other three EFTA countries, I thought it might be of some interest to see how simply the UK Parliament dealt with a rather similar situation with Section 2 of the Ireland Act 1949:

    http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/41

    “2 Republic of Ireland not a foreign country.

    (1) It is hereby declared that, notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom or in any colony, protectorate or United Kingdom trust territory, whether by virtue of a rule of law or of an Act of Parliament or any other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, and references in any Act of Parliament, other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, to foreigners, aliens, foreign countries, and foreign or foreign-built ships or aircraft shall be construed accordingly.”

    Take note, EU, you only need to legislate that for the time being the UK will be treated as if it was still an EU member state for the purposes listed hereunder …

    It might also be interesting to see how simply the EU could arrange for the UK to be added to the various lists of authorised “third countries” to permit existing trade in foodstuffs or whatever to continue uninterrupted and unimpeded after we have left; it seems it could be done just on the basis of the signature of the President of the EU Commission:

    http://eur-lex.europa.eu/eli/reg_impl/2016/1793/oj/eng#ntr3-L_2016274EN.01004801-E0003

    “COMMISSION IMPLEMENTING REGULATION (EU) 2016/1793 of 10 October 2016 amending Implementing Regulation (EU) 2016/759 as regards the introduction into the Union of gelatine and collagen and treated raw materials for these products from Taiwan
    (Text with EEA relevance)”

    Article 2

    “This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
    This Regulation shall be binding in its entirety and directly applicable in all Member States.
    Done at Brussels, 10 October 2016.
    For the Commission
    The President
    Jean-Claude JUNCKER”

    As I’ve said before ad nauseam, where there is the political will there is almost always a legal way, and if perchance there is no legal way then if necessary it can be agreed that a blind eye will be turned to the adoption of an unlawful way – which is what the EU has done in the past, for example with the first eurozone bailouts.

  35. PaulDirac
    Posted August 9, 2017 at 11:37 am | Permalink

    ” It says that after we have left UK judges no longer HAVE to follow new judgments by the European Court of Justice”
    This language is confusing, note; we don’t HAVE to follow Canadian, American Vietnamese or any nation’s judgments, why be specific about the ECJ?
    Why is it necessary to say that at all, if the courts are independent of the ECJ it is absolutely clear that they have to follow ONLY UK law.

    Reply Because when we start out again as an independent nation we will have a lot of carried over EU law.

    • Denis Cooper
      Posted August 9, 2017 at 1:55 pm | Permalink

      As I said yesterday:

      “We already have this kind of problem with the Council of Europe’s ECHR, where the Human Rights Act 1998 instructs UK judges to “take into account” judgments from that court; we have occasional instances where UK judges cite cases in other, usually Commonwealth, countries; we also still have the Privy Council as the final court of appeal for many of those countries; and so on.”

      And as the Guardian says today:

      “Comparative international law and national law are deeply entwined. As the late Lord Bingham pointed out in his book The Rule of Law, UK courts already have to take account of international law and precedent in issues as diverse as aviation law, commercial and intellectual property law, crime, employment, industrial relations, the environment, treaty obligations, family law, human rights, immigration, immunities, the law of the sea and the laws of war and weaponry. Countless leading judgments in UK law routinely reflect this reality. Courts in one country learn from courts in another. In the phrase of the former president of the Israeli supreme court, Aharon Barak, comparative law is “an experienced friend”.

      To exclude the UK courts from considering European rulings would therefore punch a large, arbitrary and utterly perverse hole in a system of comparative law that has been of historic benefit to international fairness and decency in many lands. It would mean that the UK courts could cite rulings by the US, Canadian and many other courts, but not those of our European allies and neighbours, with whose laws ours have been intimately entwined for nearly half a century. ”

      However if the Supreme Court judges are worried by the proposed wording in Clause 6 of the European Union (Withdrawal) Bill they should be asked how they would improve it. I guess that could be better done through private conversations rather than shouting at each other through the mass media.

      • PaulDirac
        Posted August 10, 2017 at 6:01 pm | Permalink

        You make a valid point, there are additional sources which UK courts have to consider.
        However, this is not my point.
        The sentence I object to is referring solely to the ECJ, if the default (for UK courts) is to follow any lawmaking they chose in the world, than you do not need to single out the ECJ.
        Put simply, you can’t sue anyone here based on Canadian law, the courts will have discretion when it comes to treaties, international law etc. But not other countries law, which is what the EC will become when Brexit is finally done.

        • Denis Cooper
          Posted August 11, 2017 at 7:53 am | Permalink

          Well, which UK courts either have to consider or are permitted to consider. But this is Clause 6 of the European Union (Withdrawal) Bill which is specifically about the EU and therefore the ECJ, not about any other potential sources of law around the world. As far as the weight to be given to EU law and ECJ judgments after we leave the EU, the Bill as it stands says:

          “(5) In deciding whether to depart from any retained EU case law, the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law.”

          I can’t say whether that is a good enough formulation, but anyway I would suggest that the judges should be asked for their opinion and any suggestions for better formulations.

  36. majorfrustration
    Posted August 9, 2017 at 11:49 am | Permalink

    Exactly – whats so difficult or have I missed something. Possibly remainers see problems round every corner

  37. Denis Cooper
    Posted August 9, 2017 at 12:00 pm | Permalink

    The Guardian is struggling to build this up into another huge problem:

    https://www.theguardian.com/commentisfree/2017/aug/08/the-guardian-view-on-the-judges-and-brexit-ministers-must-come-clean

    “It is also why ministers should come clean. The draft clause in the EU withdrawal bill may not be perfect, but it is far preferable to any attempt to proscribe the ECJ from UK judicial thinking. The consequences of preferring it are profound and desirable. The ECJ should continue to have a proper, though inevitably different, role in UK law after Brexit. The exceptionalist red line must be erased. Mrs May should explicitly permit the UK courts to take account of ECJ rulings.”

    So presumably Mrs May is unaware that the draft clause says:

    “A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so … ”,

    or perhaps “may do so if it considers it appropriate to do so” is just not sufficiently explicit for the constantly whinging eurofanatics at the Guardian.

  38. Juiliet
    Posted August 9, 2017 at 12:30 pm | Permalink

    Seem a bit confused how Remainers have built their entire lives on the foundations of the EU existence and act like the UK never existed before the EU changed direction in 1999. It’s as if they cannot function or think for themselves without referring to the invisible EU handbook

    What part of ‘taking back control’ do they not understand; or is it simply that they want to make things sound so difficult in the media to create unnecessary noise. All industry sectors are acting in the same manner

    EU law and case law will be converted and incorporated accordingly into UK law and will apply post-Brexit. UK legal system will no longer reside under EU ECJ jurisdiction

  39. ChrisS
    Posted August 9, 2017 at 12:30 pm | Permalink

    I feel a little uncomfortable with the idea that our government is encouraging the UK Supreme Court judges to follow the ECJ if they see fit. We all know that they have been over-keen on EU matters in the past and this just gives them carte-blanche to carry on as before.

    Is the Government giving our newly-supreme Supreme Court the same instruction in respect of the US Supreme court ? If not, why not ?

    • Denis Cooper
      Posted August 9, 2017 at 1:44 pm | Permalink

      I suppose there is less need to do it with respect to the US Supreme Court because Parliament has never been so silly as to make that US law superior to our law and that US court superior to our own courts.

      • ChrisS
        Posted August 9, 2017 at 10:23 pm | Permalink

        I agree, however in encouraging our Supreme Court to follow the ECJ where they see fit, our Government seems to be making the same mistake as Brussels and the 27 who seem totally unable to accept that after Brexit is complete, we will be as independent as any other country that has never been a member of the EU.

        This is obvious in many aspects of their negotiating position. The worst example being their sheer arrogance in expecting us to allow EU Citizens who freely choose to live in remain living in Britain, to have recourse to the ECJ over the heads of our own Supreme Justices.

        I’ve said here before : we should be applying a “US Test” to every aspect of the negotiations : i.e. would what is being proposed be acceptable to a US President and Congress ? If not, it should be rejected by us.

        • Denis Cooper
          Posted August 11, 2017 at 7:58 am | Permalink

          Maybe the wording should be changed to:

          “(2) A court or tribunal shall not have regard to anything done on or after exit day by the European Court, another EU entity or the EU unless it considers it essential to do so.”

          • Monza 71
            Posted August 12, 2017 at 11:51 pm | Permalink

            Would that pass my “US Test” ?

            I don’t think so.

  40. Russell
    Posted August 9, 2017 at 12:34 pm | Permalink

    I know arm chair psychology is tricky but I detect behind the judges request a kind of emotional bond with the EU that I find surprising. This extends beyond the judiciary because the level of upset we’ve seen can only be explained by the severing of a deep emotional bond. Perhaps even the snapping of a crutch?

    Has the EU replaced religion as a symbol of salvation?

  41. ian
    Posted August 9, 2017 at 12:42 pm | Permalink

    If you want sell goods in the eu, you will have to follow ecj and eu laws, and hear in the uk you would have to change the MPs you vote for, if you do not want to follow the ecj and eu play book, because laws are made in parliament, and with MPs you have at the moment they will vote through eu and ecj laws, and you won’t be able to stop them, because you have no control over them.
    To recap, coming out of the EU dose not stop UK PMs from voting through more EU laws after you come out of the EU..

    • Denis Cooper
      Posted August 9, 2017 at 1:39 pm | Permalink

      Perfectly true, coming out of the EU doesn’t stop our sovereign Parliament freely deciding to copy some EU laws, but not others, and nor does it stop our sovereign Parliament later deciding to repeal or amend such laws.

      • hefner
        Posted August 9, 2017 at 8:00 pm | Permalink

        Fully agreed. In which case, I cannot make much sense of today’s “storm in a teacup” created by JR’s contribution.
        It will obviously be the responsibility of Parliament (and that means individual MPs) to discuss and vote what they want to keep or modify.
        I just hope the Parliament discussions and names of who voted for what will be detailed and easy enough to access, so that anyone could check the consistency between one’s MP’s declarations and their subsequent votes.

        • Denis Cooper
          Posted August 10, 2017 at 11:47 am | Permalink

          I think the storm in the teacup has been whipped up by the Telegraph rather than by JR. But nonetheless I think people are entitled to be suspicious when in the past judges have been seen to be obstructive on matters such as the deportation of foreign undesirables, and when a judge seemed to be dismissing the UK’s treaty opt-out from the EU’s Charter of Fundamental Rights as irrelevant.

  42. MikeP
    Posted August 9, 2017 at 12:48 pm | Permalink

    Worryingly you say that if a new case comes before the ECJ which changes EU law, the UK’s Supreme Court judges can if they wish also change UK law. Aren’t our judges there solely and independently to *interpret* our laws to reach their judgments, as laid out by Parliament, not to change them?

  43. Robin Wilcox
    Posted August 9, 2017 at 1:02 pm | Permalink

    Seems clear enough to me. I thought all these Remoaners were supposed to be clever people with University Degrees ?

    • Anonymous
      Posted August 9, 2017 at 6:04 pm | Permalink

      Not wishing to spoil your joke – you do not need to be clever anymore to get a degree. Not even a First. They are now as common as muck around here.

      If I hear another mother tell me their kid’s got a First… (Yeah. From some red brick.)

      Only 5% went to University whenaweralad.

  44. lojolondon
    Posted August 9, 2017 at 1:10 pm | Permalink

    I don’t see how this can be correct – British laws come from Parliament. Courts / Judges get to implement the law. So surely British judges can only follow ECJ lead on judgements if the UK has the same laws as the EU? For example, British judges could not follow EU lead if British law was diferent to EU law, also, the British parliament would be free to change British law at any point to prevent that judgement from being followed. So this is really a non – story from the MSM.

  45. Peter
    Posted August 9, 2017 at 1:22 pm | Permalink

    Too much talking. Not enough action.

    It is clear that all this will drag on unless the UK says ‘enough is enough’ and walks away.

    I have no faith in negotiations.

    Go to WTO terms straight away.

    Any improvements can be negotiated after we are out.

    • Martin
      Posted August 9, 2017 at 9:00 pm | Permalink

      Ever bought a house in England ?

      Umpteen weeks waiting for bits of paper to come through prior to exchange of contracts.

      It usually takes me weeks to sort out my relatively simple income tax affairs each year.

      I understand the UK Govt. is finally publishing it thoughts on the Irish border. Surely this should have been done months ago? The British Government’s approach is a bit like a mountaineer deciding, only after reaching the foothills, that he had better have a map and maybe some climbing gear.

  46. Freeborn John
    Posted August 9, 2017 at 2:23 pm | Permalink

    The fact is that after the Great Repeal bill, there will be no EU law in the UK; just former EU law transposed into UK law for which the normal judicial processes should apply with the Uk Supreme Court being supreme. I believe this is an attempt by the pro-EU judiciary to keep us tied to future changes in EU law. It is vital that only EU law that was on the statue books prior to brexit is transposed into national law. The whole point of the Repeal Bill must be a decoupling of EU and Uk law such that they can diverge in the future. Lord Neuberger seems to hope that UK law will in future permanently shadow EU law as it does in States that are members of the EEA. This must be categorically rules out if we are to take back control of our laws.

  47. HardyB
    Posted August 9, 2017 at 4:33 pm | Permalink

    It’s becoming clearer now, the government after much soul searching has decided that we have little choice now but to have some sort of trading association deal into the future with the EU bloc, which means we will end up with some deal like Norway has inside of the customs union where we will pay to have the privilege of trading while being subject to ECJ courts etc for goods standards and trading matters but with no say at all in decision making at the EU level. So we have now decided to embark on this model where we adjust our thinking and accept that that we have taken back control of some things but not all, and then we can continue on as before working, living, trading and taking our holidays, in europe etc, and with holding a special status style British passport so that we can get by.

    Truth is that D Davis has tried all of the back channels into EU countries for special deals and there is nothing doing also Liam Fox has being around the world with Boris and there is nothing happening there either, not in the US, not in India, not anywhere except maybe mutton and wool from Australia? The world has moved on since the old days and countries are trading more within their own regions. So it has been decided that we have to stick with Europe one way or another, we have no choice. Apparently the EU has already so much of our trade currently and being right on our doorstep that it would be a nigh on impossible to disentangle our association completely and get other trade deals to compensate for the loss- The government knows that this is going to be very difficult for a lot of people to accept so the EU is going to have to row in and help with the new arrangement- which will all work out in the end but will take some time. it will start with a transitional arrangement from march 2019 that will probably run for years- just my opinion

    Reply Nonsense. US trade talks started with US keen. We will trade with rest of EU, if necessary under WTO rules.

  48. Freeborn John
    Posted August 9, 2017 at 5:10 pm | Permalink

    I despair of David Davis. According to today’s newspapers he is reportedly ready to fight the EU position of limiting the right of UK citizens currently resident in one EU27 state to migrate to another after Brexit. He is saying this is contrary to the EU Commission desire to keep the existing rights of citizens. However in making such an argue meant he is playing j to the hands of the EU Commission seeking to give EU27 citizens resident in the UK rights in future which Britons do not have, such as the automatic right to bring non-EU spouses into the Uk and for such rights to be enforced by the ECJ in future. David Davis does not appear to have a grip in The brexit negotiations and seems prepared to waste the negotiating capital he has ‘fighting’ the EU on issues on principles which will play into the EU hands and advance the interests of Uk citizens who have left the UK at the expense of real British citizens who actually live in the UK. He is going to negotiate a bad deal if he picks battles which will only advance the EU negotiating position.

  49. margaret
    Posted August 9, 2017 at 5:56 pm | Permalink

    I wonder whether past convictions , where individuals or organisations are judged and penalised in some way by the ECJ , would have the entitlement to be revoked under a morphed UK law.

    • margaret
      Posted August 9, 2017 at 6:01 pm | Permalink

      of course I meant that convictions could be overturned.

  50. alte fritz
    Posted August 9, 2017 at 7:34 pm | Permalink

    Surely the ECJ will be persuasive on statutes originating in EU Directives, and no more.Judges exercised judgment on EU law long after 1973. It was a generational shift that produced EU judges.

  51. Mehtab
    Posted August 9, 2017 at 8:48 pm | Permalink

    I would like to have seen john redwood as chancellor

  52. Martin
    Posted August 9, 2017 at 8:53 pm | Permalink

    I think the point the judges are trying to make is that a lot of EU directives are open to interpretation and it is only after a court from a member state send the directive up to the ECJ that a binding interpretation is reached.

    What I suspect the judges want is direction from parliament. For some areas it will make sense to keep UK laws in step with EU law. If you don’t want the judges to do this fine, but it might mean Hon. and Rt. Hon. members having to pass emergency laws. Maybe you are happy about being recalled, from a post Brexit holiday in Bognor, to pass these laws, others may not be.

    The odd supreme court judgement I have looked at (usually to do with planning) seems to have a mix of ECJ judgements usually backed up with Canadian cases!

  53. Original Richard
    Posted August 9, 2017 at 8:58 pm | Permalink

    Why is it that our judges wish to adjucicate on issues using EU/ECJ made laws rather than those issued by our Parliament ?

  54. ian
    Posted August 9, 2017 at 9:42 pm | Permalink

    When you come out of the eu, the eu laws will be change into uk laws, then up to MPs in parliament to amend the laws or the gov of the day, but the gov of the day can be hand strung by MPs in parliament to what it can do. These laws can also take years to change if the gov dose not have power to do it it self, because MPs in parliament are not likely to give the gov that power unless they have a landslide win, and it the party manifesto in a GE.

    Now judges and the judiciary implement and interpret the laws of the land, before you had ECJ laws, judges were always in the news for bad interpretation of UK laws, with parliament in up roar, because once a judge has made a judgement it cannot be changed, and government would set a date in parliament so the law could be amended so it did not happen again, and that was how it was, backward and forwards with judiciary and parliament, and this is how it will be again.
    Why will it be like that again, because at the moment parliament has no say in ECJ laws and cannot amended them, only the ECJ can, so judges have not been making bad interpretation on ECJ laws other wise you would heard about it.
    At the moment the gov can only go to the ECJ court and ask for it be changed, but ECJ laws in this country are supreme, and when you leave the EU, UK parliament will be supreme, with the liberal judges in the UK going back to bad interpretation of UK laws.

    So getting out of the EU is the first step, getting right MPs into parliament to make laws and amendment to laws without loopholes is the second step, and getting the right judges is the third step. I think you lot out there have a lot to learn about how this country works, and might learn when you leave the EU, with all the infighting between the judiciary system and parliament, with infighting between MPs and parties and the gov in the news all the time, which has been missing since the ECJ took over most of the law making.

  55. anon
    Posted August 9, 2017 at 9:51 pm | Permalink

    Is there some kind of transition type fudge which has been floated past the judges which may have caused them to feel uncertainty.

    The Supreme Court wished to spend a whole lot of time deciding whether something parliament left to a referendum should be sent back to parliament to confirm what they really wanted.

    In which case i think is he pointing out now the difficulty in having an equivalent parliament treaty fudge.

    Hence a no deal clean break is the best option that i can see at present. So lets just expedite the process earlier by mutual agreement or abrogate and move on.

  56. Ex BBC watcher
    Posted August 9, 2017 at 11:23 pm | Permalink

    Twitter comments appear to show JR was on Newsnight tonight. I looked to BBC Newsnight online but they requested me to “Sign in” . I don’t ask the BBC to “sign in”..and I pay them, not the other way round. Alas, I will not see the economy-bulb lit Newsnight studio again and their announcers who look like their dark holiday luggage is neatly packed under their eyes.

    • Peter
      Posted August 10, 2017 at 2:34 pm | Permalink

      Correct. It was on the subject of expenses incurred by European Commissioners which had eventually been revealed after the European equivalent of a Freedom of Information request.

      Evan Davis played the whole discussion as if it was ‘much ado about nothing’.

      • rose
        Posted August 10, 2017 at 6:53 pm | Permalink

        He didn’t ask the smooth EU propagandist, when she said it was all negligible and only x thousand per country, whether she meant all 28 or just the countries contributing.

  57. Posted August 10, 2017 at 1:18 pm | Permalink

    An absolutely absurd post by JR. Parliament is Supreme. That is in part what Brexit is about. It is not for judges to makes the law up because we they left huge gaps in it – particularly not when dealing with statutes or statutory instruments.

    Needless to say John Redwood thinks he knows more about this than Lord Neuberger.

    And with Brenda Hale in charge God help us.

  • About John Redwood


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