Supreme Court president voices concerns over Brexit bill wording

The UK’s most senior judge has warned the government’s Brexit legislation could leave the judiciary at risk of “appearing to make a political decision”.

Supreme Court president Baroness Hale said she had concerns about the legislation as it was currently drafted because it required judges to decide if it was “appropriate” to consider rulings by the European Court of Justice (ECJ) in Luxembourg after Brexit.

The European Union (Withdrawal) Bill is currently going through the House of Lords and Lady Hale told peers that the wording of the legislation could put the judiciary in a difficult position.

Giving evidence to the Constitution Committee, she said: “The current draft we find very unhelpful because in the first place it says we don’t have to take account of Luxembourg jurisprudence, and then it says we may do so if we think it appropriate.

“We don’t think ‘appropriate’ is the right sort of word to address to judges.

“We don’t do things because they are appropriate, we look at things because they are relevant and helpful.

“But we don’t want to be put in the position of appearing to make a political decision about what is and is not appropriate.

“That’s the concern that has been voiced.”

She said a working group of senior judges was working on technical issues with the Ministry of Justice and the Brexit department to raise concerns.

But she told peers that the Supreme Court would not be putting forward its own suggestions to rewrite the legislation.

“We do not see it as our job to tell government what we would like to see specifically in the wording in a piece of proposed legislation,” she said.

“We think that is inappropriate from a separation of powers point of view and the last thing we want is anybody to be telling Parliament ‘well, we have consulted the Supreme Court and they say this wording is fine’ and then of course we have a case and we find it’s not fine.”

She said a number of potential areas where Brexit could result in legal cases had been identified.

They include the potential for challenges to the constitutional process, judicial reviews of the use of so-called Henry VIII powers to change laws without full parliamentary scrutiny and the prospect of cases brought by the devolved administrations.

With the Scottish and Welsh governments at loggerheads with Whitehall over the Brexit legislation, Lady Hale suggested “that’s looking more and more likely as we speak”.