Earlier this month, the President of the Supreme Court, Lord Neuberger, called for greater clarity over the legal position of decisions of the European Court of Justice, following Brexit.
European Court decisions are at the heart of our transport law. For example, decisions on how to interpret the various exceptions from the requirement to use tachographs and comply with the European drivers hours’ rules are based on cases that have been taken to the European Court of Justice. The latest question being considered is whether or not a regular weekly rest can be taken in a vehicle. The Advocate General has expressed an opinion on this and the usual next step is for a legally binding ruling by the ECJ.
Cases, such as the one concerning the interpretation of how a weekly rest can be taken, will continue to come before the ECJ and will be of interest to the UK transport industry. Lord Neuberger’s concern, expressed in an interview to the BBC was that if the Government doesn’t express clearly what judges should do about decisions of the ECJ after Brexit, then the judges will simply have to do their best. The EU Withdrawal Bill states that a court or tribunal need not have regard to anything done on or after the exit day by the European Court, or another EU entity or the EU but may do so if it considers it appropriate to do so. As this stands, it leaves a lot of discretion to judges. Lord Neuberger said in the interview that judges would hope and expect Parliament to spell out how the judges would approach that sort of issue after Brexit and to spell it out in statute.
However, the issue is resolved, it will have profound implications on the transport industry.