Letter to Ministry of Justice: Clause 6 of the Withdrawal Bill: 19 March 2018

Abstract

On the recommendation of members of the FMLC’s Advisory Group on Brexit, the FMLC wrote to the Ministry of Justice to draw attention to potential legal uncertainties arising from provisions in the European Union (Withdrawal) Bill (the “Withdrawal Bill”), which will, post-Brexit, govern the interpretation by U.K. courts of E.U. concepts. According to the Withdrawal Bill, where the meaning of an autonomous E.U. term or concept is defined before exit day, U.K. judges will follow that interpretation. The FMLC notes, however, that where the meaning of terms is not fixed by exit day—or their interpretation is discussed and adjudicated upon by the ECJ post-Brexit—there remains ambiguity as to how U.K. courts should proceed. The FMLC also offers a potential solution by which this may be resolved.