LONDON (Reuters) - British judges could find themselves drawn into policy matters normally best left to parliament if a government bill on exiting the European Union is enacted as currently worded, a senior judge said on Wednesday.
The EU Withdrawal Bill aims to provide legal clarity by converting existing EU laws into domestic ones while ensuring that Britain is no longer subject to EU court decisions after leaving the bloc in March 2019.
One of the bill’s clauses says a UK court will no longer need to take into account anything done on or after exit day by the European Court of Justice (ECJ) or any other EU entity, but “may do so if it considers it appropriate to do so”.
David Neuberger, who recently retired as president of the UK Supreme Court, told a parliamentary committee that the clause could lead to situations where judges had to take into account economic or political factors when making their decisions.
“These are the sort of factors which judges are not naturally the people to take into account. It puts them very much into policy areas where on the whole the tradition in the country has been to keep them out,” he said.
Neuberger gave a hypothetical example, envisaging a situation where the ECJ had decided a point on a directive or regulation which affected the right to trade between EU member states, and a UK court found itself having to decide a similar point.
“Should the UK courts take into account the fact that if they decided differently from the EU court it would affect trade between the UK and the EU, or possibly financial arrangements or City interests, or that it may affect political interests or international relations between the UK and EU?” he asked.
Neuberger said that in the absence of more precise guidance from parliament, judges would do their duty and decide for themselves whether to take such factors into account.
“But they may not make decisions that are welcome here (in parliament) and it would be better to give them guidance,” he told a House of Lords committee on constitutional affairs.
Neuberger’s successor as Supreme Court president, Brenda Hale, has also called for greater clarity from parliament on how judges should deal with EU court rulings after Brexit.
Reporting by Estelle Shirbon; editing by Stephen Addison