Policy Exchange’s Judicial Power Project Head, Professor Richard Ekins and Graham Gee wrote to the Financial Times in responce to a recent editorial. Read the letter in full below. It was published here.
UK judges’ future looks robust, not fragile
Sir, Your editorial “Brexit places Britain’s judges in the line of fire” (August 11) wrongly states that refusal to concede a continuing role for the European Court of Justice after Brexit creates a predicament for UK judges. While Lord Neuberger, president of the UK’s Supreme Court, is right that the status of future ECJ rulings is a political question for parliament to decide, the Repeal bill answers that question clearly, as your editorial implicitly concedes in terming it “not technically controversial”.
The bill maintains initial legal continuity but permits future divergence, which is unremarkable in so far as EU-derived law will in future be domestic law. It might be prudent for future UK law to mirror EU law, but this will be for parliament and ministers to decide — not the courts.
In any case, judges do not “have good reason to feel apprehensive” about their constitutional position. Our constitution is distinguished by a long and rich tradition of judicial independence. What was remarkable about the Article 50 litigation was that ministers did not criticise the decisions of the courts, confirming the robustness — not the fragility — of judicial independence.