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Giving evidence to a parliamentary select committee, Lord Thomas, Lord Neuberger, Lord Hope and Sir Konrad Schiemann signalled reservations about the difficulties of preserving the rule of law after Brexit.
All four stressed that while many arrangements had not yet been finalised it was difficult to be sure how the courts would cooperate with EU judges and legal systems in the future.
They also expressed concern about government plans to give judges a wide discretion in deciding what weight to attach to decisions of the European court of justice (ECJ) in Luxembourg after the UK had left its jurisdiction.
“The problem … is that the judge [will be moving towards] accepting diplomatic and political factors in following the [ECJ],” Neuberger, the former president of the supreme court, told the EU justice subcommittee in the House of Lords.
“This is an uncomfortably wide discretion. The judge will have to decide what factors to take into account … It would be better not to have a system where judges are free to take [such matters] into consideration.”
Thomas, the recently retired lord chief justice, agreed that giving such latitude could create a “very real problem for the independence of the judiciary if this is not clarified
He questioned whether, once the supreme court began to develop a separate British jurisprudence after the UK has left the EU, any UK firms would want to use it if it was limited to the UK and did not apply across the continent. “Very little thought has been given to that,” he noted.
Schiemann, who was the UK judge on the ECJ between 2004 and 2012, observed: “What we have to learn to do is also to look at problems from the [perspective of the] other 27 EU members when we are trying to agree.
“There’s going to be a certain reluctance to set up a new parallel scheme compared with the existing Efta [court] which has already been grafted into the ECJ.” [...]