Fate of EU court rulings post-Brexit could be in hands of UK judges

First published on the MLex Brexit Service 16 November 2016. By Matthew Holehouse.

UK judges may have to decide which EU court rulings remain valid in Britain after the country leaves the bloc, a British minister said today.

The UK government doesn’t know at this stage what force EU rulings will have after Brexit, Jesse Norman, the minister for energy and industry told British lawmakers.

The UK government is planning to codify EU rules into domestic law through a single piece of legislation, to be known as the Great Repeal Bill. This is intended to provide stability for businesses by setting up a regulatory regime similar to that of the EU to ease cross-border trade.

Far less certain is the status of 43 years of judgments from the EU courts, which have helped shape UK domestic policy in areas such as employment law and air pollution.

EU judgments that had been codified into UK or EU legislation would continue to have force after Brexit, Norman said. But UK judges would decide on the status of judgments that haven’t, he said.

“With regard to the Repeal Bill and the [EU Court of Justice]…where there are decisions mirrored in UK law separately, they will persist,” after Brexit he told lawmakers on the House of Lords EU Energy and Environment Sub-Committee.

“But there may well be some [EU Court of Justice] judgments that sit in… limbo and it may be open to [UK] judges to follow or not follow those, depending on their view of the jurisprudence,” he said.

Norman said the status of such rulings “is not a matter that is precisely capable of definition, even in principle, at this stage.”

Appearing in the same evidence session, Therese Coffey, an environment minister, also said she was unsure whether such rulings, which often shape UK government policies, would still be valid.

UK civil servants are currently auditing EU rules, in preparation of the Great Repeal Bill.

Coffey said this “huge” exercise is still taking place in the Department for the Environment, Food and Rural Affairs. Legislation governing chemicals, pesticides and greenhouse gasses is proving particularly complex, as civil servants seek to ensure “nothing falls between the gaps” when the UK exits the EU, she said.

Coffey said the UK government doesn’t want to see weakened environmental targets and the country wants to meet its international climate change commitments.

	Eliot Gao