Brexit bill will allow British judges to depart from previous rulings of EU’s top court

19 December 2019

A Downing street official has confirmed that the government’s Brexit bill will enable courts below the Supreme Court to depart from previous rulings of the European Court of Justice (ECJ).

The plans are laid out in the Withdrawal Agreement Bill (WAB), which MPs will vote on this Friday after the Conservatives were re-elected last week. The BBC reports how the PM’s spokesman stated that this would mean that judges at lower courts would not be “inadvertently” tied to the rulings “for years to come”. To date, only the Supreme Court and the High Court of Justiciary in Scotland were able to depart from the rulings of the ECJ, and the spokesman went on to say that extending the ability to do this to lower courts was an “important change” to ensure that they do not face a “legal bottleneck”. He also commented:

 "We will take back control of our laws and disentangle ourselves from the EU's legal order just as was promised to the British people."

 Critics have commented that the proposals could cause significant confusion, with crossbench peer Lord Pannick QC stating it would "cause very considerable legal uncertainty.” There are concerns that the new legislation will mean substantial additional work for lawyers but more importantly, that it could have potentially detrimental effects on many workers.

Clive Coleman, the legal affairs correspondent at the BBC, provides an example of how this might apply and how it could affect payroll professionals, and it relates to holiday pay. The ECJ includes overtime in holiday pay and UK courts are currently bound to this. The pledge could mean that UK courts no longer must comply with this ruling, which could have significant impacts on employees and employers alike across the UK.

After the 11 month transition period that is to be observed after Brexit, an employer could present a case at one of the lower civil courts in the UK and a judge could consider applying a less generous interpretation of the right to paid holidays - one that does not take over time into consideration.

Former Conservative leader and pro-Brexit European Research Group figure, Iain Duncan Smith applauded the proposal and said:

 "This is a critical pledge that puts sovereign rights back in the hands of the UK government and of course the British people."

 Boris Johnson is hoping to get a Brexit deal passed through Parliament in the new year, and the intention is for the UK to leave the EU by 31 January 2020. If successful, the UK would adhere to EU rules for an 11-month transition period, which would conclude on 31 December 2020. The WAB due to be approved by the end of the week includes a stipulation that rules out any extension to the transition period beyond the end of next year.


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