Taking CJEU decisions ‘into account’ post-Brexit

Posted in UK and EU legal framework

The new President of the UK’s Supreme Court, Lady Hale, has sought clearer guidance from Parliament as to the extent to which UK courts should have regard to decisions of the CJEU post-Brexit. 

As set out in our earlier blog post, the Government’s European Union (Withdrawal) Bill provides that UK courts are not bound by any EU law or court decision made after Brexit, although they are permitted to have regard to them.

More recently, in Theresa May’s Florence speech, the Prime Minister stated that where there is uncertainty around underlying EU law, it is her desire that domestic courts should “take into account” judgments of the CJEU, arguably going further than what is contained in the Bill.

Following her appointment as President of the Supreme Court, Lady Hale stated [w]e hope that the [European Union (Withdrawal) Bill], when it’s eventually passed, will tell us what we should be doing - giving us the power to take into account, or saying we must take into account, or saying we must ignore … Whatever parliament decides we should do, we would like to be told because then we’ll get on and do it.

She added that ‘Take account’ is quite useful because it does give one the power to take it into account, but also the power to say ‘for the following good reasons, we think something else’.

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