A post-Brexit UK may still need to pay heed to developing Court of Justice of the EU (CJEU) case law, a committee of MPs says today in a controversial report highlighting the legal complexities of leaving the EU.

The House of Commons Exiting the EU Committee notes that while the UK 'is likely to move away from the jurisdiction of the CJEU', the terms of the future relationship with the EU may entail continuing regulatory conformity in areas such as product standards and data protection. 'Where regulatory conformity provides the basis of the continuing relationship, this may necessitate agreeing dispute resolution procedures, in trade and other areas, which require continuing account to be taken by UK courts of CJEU case law, just as in any similar agreement with another country the UK courts would take account of the other country’s rulings,' the report states. 

Meanwhile the transposition of EU regulations into domestic law, to be carried out under the promised Great Repeal Bill, 'will not be a straightforward undertaking and will raise a number of important constitutional and legal questions'. These include: 

  • Whether and how the bill will seek to remove references to EU institutions and agencies from the EU law which is to be transposed into domestic law and what institutions will be referred to in their place;
  • The breadth and scope of any “Henry VIII powers” contained in the bill which will enable ministers to make changes to primary legislation which applies EU law through secondary legislation and, if so, how these will be limited;
  • Whether the bill will require legislative consent motions from the devolved legislatures;
  • The impact on the constitutional settlements of Wales, Northern Ireland and Scotland; and
  • Whether CJEU judgments will continue to be relied on in UK courts after Brexit in order to interpret the transposed acquis communautaire.  

The report cites evidence by environment secretary Andrea Leadsom that about two-thirds of relevant EU legislation 'will be able to be rolled forward with just some technical changes', implying that one third will need UK legislation.  

Committee chair Hilary Benn MP said: 'The government should conduct a thorough assessment of the economic, legal and other implications of leaving the EU without a deal in place. The public and Parliament have a right to the maximum possible information about the impact of the different future trading options being considered.'

Unusually for a select committee, six members voted against the final report as painting too negative a picture. Dissenter Dominic Raab (pictured), a Conservative former justice minister,  said the report was 'rushed, skewed and partisan'.