The legal implications of leaving the EU have not been thought through, could overwhelm the supreme court and endanger the independence of the British judiciary, four senior retired judges have warned.
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.”
Hope, the former deputy president of the supreme court, said the ECJ would be essential for security and judicial cooperation.
“There was a glimmer of light in the prime minister’s speech in Florence where she referred to [security and judicial cooperation],” he said. “I can see it’s possible to design such a system but how you can do it without involving the ECJ, I don’t know.”
Even as the judges spoke, supporters of Brexit were insisting that no such problems would arise – and that the court could be dispensed with.
Speaking at a conference called Deal or No Deal?, David Jones, the former Brexit minister, said it would be “completely unacceptable” to many Conservative MPs if the ECJ kept any role in UK affairs in the long term after leaving the EU.
Jones, who also argued Britain should walk away from negotiations if there was insufficient sign of progress at a summit next month, indicated he and other pro-Brexit Tories would probably vote against a deal that included such an eventuality.
Jones said he and likeminded MPs considered a long-term role for the ECJ to be “a red line”.
“I don’t think that we could regard ourselves as an independent sovereign nation, if in fact we would be subject in any way to the jurisdiction of the European Court of Justice,” he told a conference in Westminster organised by the European Conservatives and Reformists, the European parliament group that includes Tory MEPs.
Asked if he would vote against such a deal in parliament, Jones, who lost his job as a junior Brexit minister in a reshuffle in June, hinted that he would.
“Put it this way, I can’t think that I and a large number of my colleagues would countenance any arrangements where the European court of justice had indefinite jurisdiction in this country,” he said.
“I think that it would be completely unacceptable.”
At the same event, the Brexit secretary, David Davis, said he still hoped for a formal deal with the EU but was prepared for the alternative.
“I do want to explain that I sit completely and unambiguously on the deal side of this particular equation,” he said.
But, he added: “The department I run isn’t called the department for getting a deal come what may. It’s the Department for Exiting the European Union and, whatever happens, we are leaving the European Union and delivering on the instructions of the British people.”