The panic about a Brexit legal limbo isn’t justified

In widely reported remarks earlier this week, Lord Neuberger, the outgoing President of the Supreme Court, called for Parliament to tell our judges very clearly how rulings of the Court of Justice of the European Union (CJEU) are to be dealt with after Brexit. Lord Neuberger’s concern is to avoid judges being left without guidance, required simply to do as they see best, which might invite the unfair charge that they are choosing to make law, whereas in fact they would have been left with no alternative.

This concern to leave political questions to the political authorities, echoed in a recent speech by the outgoing Lord Chief Justice, Lord Thomas, is welcome. It runs contrary to a tendency otherwise evident in recent years, for courts (domestic and European) to be encouraged or required, or to choose for themselves, to transform political questions into legal questions.

So Lord Neuberger is right: Parliament should make very clear how our judges are to approach CJEU judgments after Brexit.