The UK’s senior judge has confronted the government with a question for which politicians must take responsibility
In a BBC interview this week, the president of the United Kingdom supreme court posed an apparently simple question. After Brexit, Lord Neuberger asked, should the UK judges take into account the rulings of the European court of justice or not? Britain’s most senior judge, who steps down next month, was very clear about his own answer: “If the UK parliament says we should take into account decisions of the ECJ then we will do so. If it says we shouldn’t then we won’t.”
Constitutionally, this was an impeccable answer to his own question. Parliament makes laws; judges interpret them. Yet politically, and even legally, it leaves many profound questions unresolved. The starting point of Lord Neuberger’s unease may well be the current drafting of clause 6 of the government’s EU withdrawal bill, which says that the UK court “need not have regard” to the ECJ’s rulings after Brexit day, while adding that it “may do so if it considers it appropriate to do so”. In essence, this means the decision to take account of the ECJ is up to the UK courts.