The Supreme Court anticipates five different categories of Brexit case, Lady Hale and Lord Mance have told Peers on the House of Lords constitution committee.
The Court may see more constitutional challenges such as the Article 50 case, Miller; judicial reviews of Henry VIII powers; challenges from the devolved legislatures; and issues that arise because of Brexit but have nothing to do with EU law.
Finally, ‘there are likely to be, over the long term, challenges to the interpretation of EU-derived laws that remain part of EU law including claims that we should depart from existing jurisprudence and that we should make up our own jurisprudence in relation to matters that come up later, and that could be a very large number of cases,’ Lady Hale said.
‘We don’t know how many and it could go on indefinitely.’
Lady Hale, President of the Supreme Court, also reiterated concerns ‘in relation to post-Brexit Luxembourg jurisprudence’.
‘What are we supposed to do with it? This is clause 6(2). The current draft, we find very unhelpful, because in the first place it says we don’t have to take account of Luxembourg jurisprudence and then it says we may do so if we think it appropriate.
‘We don’t think “appropriate” is the right sort of word to address to judges. We don’t do things because they are appropriate. We look at things that are relevant and helpful. We do not want to be put in a position of appearing to be making a decision that is political.’
Lord Mance said the working group has had successful meetings with the Ministry of Justice and that more guidance would be helpful, for example, on the meaning of ‘may’ where judges ‘may’ refer questions of interpretation to the European Court of Justice. He asked if this meant judges would be obliged to refer questions—what would happen if the judge thought they already knew or that they wouldn’t like the court’s answer?
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