Lower British courts to overrule EU law

Boris Johnson has split the cabinet with a plan to give British judges new powers to overturn rulings by the European Court of Justice, The Times has learnt.

Theresa May’s government agreed to transfer all existing European Union case law into British law after Brexit, a decision opposed by Eurosceptics in the Conservative Party. The commitment meant that only the Supreme Court in England and the High Court of Justiciary in Scotland would be allowed to “depart” from EU case law.

A new clause in Mr Johnson’s withdrawal agreement bill will let lower courts overturn ECJ rulings. MPs will vote on the bill on Friday 20 December.

Mr Johnson has argued that Britain should “take back control of our laws” and the change will be celebrated by his party as restoring the sovereignty of the justice system. It will mean that British courts can rule on existing EU case law dealing with issues such as holiday entitlement, sick leave, maximum working hours, VAT and flight compensation.

However, some ministers raised concerns that the plan could bring a rise in legal action and will be strongly opposed by the Lords and the judiciary. It could also harm negotiations for a post-Brexit trade deal with the EU by affecting regulatory alignment.

Lord Pannick, QC, the cross-bench peer who acted for Gina Miller in both of her successful Supreme Court cases against the government over Brexit, said: “To allow courts other than the Supreme Court to depart from the decisions of the Court of Justice of the EU in relation to transposed EU law would cause very considerable legal uncertainty.”

Geoffrey Cox, the attorney-general, is said to have raised concerns about the consequences if the amendment is not tightly drafted. The plan could have a big impact on workers rights and consumer law, for example by allowing airlines to fight compensation claims from passengers whose flights were delayed by technical faults. Employers could challenge workers’ right to carry over holiday entitlement while on sick leave.

Google could also challenge in British law the ECJ’s judgment that people have the “right to be forgotten” online.

The amended bill to be tabled on Friday will also have a clause outlawing an extension of the transition period beyond the end of next year. Mr Johnson will drop concessions made to Remainers in areas such as workers’ rights.

Michel Barnier, the EU’s chief Brexit negotiator, has warned that planning to reach a “comprehensive” free-trade deal by December 31 next year is “very unrealistic”.

Mr Johnson will ditch amendments that would have given MPs oversight of negotiations of the post-Brexit trade deal and the Commons will no longer be allowed a vote on extending the transition period. His plans dispel speculation that his new majority would free him from the hard Eurosceptics and lead to a softer Brexit.

Source: Press Association (via Reuters)