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IFG - Questions over future of UK legal system after Brexit

Parliament must urgently clarify the future of the UK’s legal system after Brexit, a new report argues.

Published yesterday by the Institute for Government (IfG), Brexit and the European Court of Justice says that ministers have left fundamental questions unanswered on the status of European Court decisions after the UK leaves the European Union.

The Government has said that pre-Brexit decisions of the European Court will be incorporated into UK law, but has not said how British judges should treat future decisions. This could leave judges exposed to a fierce political battle.

With the Repeal Bill set to go before MPs imminently, the report urges Parliament to avoid dangerous ambiguity in the legal system by instructing UK courts to take account of post-Brexit European Court of Justice decisions when they are relevant.

This would mean European Court decisions were no longer binding on UK courts in line with the Government’s ambition to take “back control of our laws” after Brexit. It would also allow British judges to draw on helpful precedents as they do from other foreign courts.

The report says the role of the European Court of Justice could be a serious stumbling block in the Brexit negotiations because the EU will want it to be the final arbitrator on the rights of citizens and the divorce bill.

Jill Rutter, Brexit Programme Director at the Institute for Government, said:

“The Prime Minister has promised to end the jurisdiction of the European Court of Justice. If only it were that simple. The court’s role is not one issue but many, and the Government so far has only come up with some of the answers. As MPs gear up to scrutinise the Repeal Bill, they should adopt a more comprehensive approach to avoid a legal muddle after we leave the EU.”

Raphael Hogarth, report author, said:

“Parliament should protect the independence of the UK judiciary by ensuring that responsibility for setting the terms of the post-Brexit constitutional order is seen to rest firmly in Westminster, not beneath a wig.”

Notes to editors

  1. The full paper can be found here
  2. The Institute for Government is an independent think tank that works to make government more effective.
  3. For more information, please contact nicole@instituteforgovernment.org.uk / 07850313791.
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