Mon, 28 November 2022

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By Tom Sasse
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Government plans but Brexit rights deal risk

Bar Council

2 min read Partner content

The Government has outlined how a deal on the ‘acquired rights’ of EU and UK citizens could be agreed, using domestic courts to enforce rights and ruling out a role for the CJEU, but the Bar Council has warned that talks could stall before they start if solutions are not found to some obvious challenges.

Commenting on the recently published Government technical note, Chair of the Bar Council Brexit Working Group Hugh Mercer QC said:

“Under these plans, a deal on rights currently seems unlikely, and that means UK as well as EU citizens will lose out.

“The Government’s plan is to agree a deal that would remove the existing right of EU citizens living in the UK from having the CJEU as the ultimate arbiter of the interpretation of their rights, even though UK citizens in the EU would continue to have access to the CJEU via references from local courts. 

“There is a question of perception with which the UK is currently not grappling – EU citizens moved here in the knowledge that issues of the interpretation of their EU law rights would be subject ultimately to interpretation by the CJEU.  This is not the same as having full access to the English courts and, where there is a perceived difference in interpretation between the English courts and the CJEU, the UK being subject to international dispute resolution as a state. 

“If the Government is rejecting any role for the CJEU, it should articulate a plan for an alternative enforcement mechanism such as a shared tribunal to which issues of interpretation could be referred by the UK courts. This mechanism would need to meet the standards of a court of law. Arbitration would not be suitable because the process is not transparent and, for historical reasons, not generally acceptable in EU states.

“However, conceiving of an alternative body to the CJEU will be tricky to negotiate because the existing rights of EU citizens already in the UK are based on EU law and the EU is likely to insist that the CJEU has exclusivity in interpreting the terms of an agreement on the acquired rights of citizens.  Even if some alternative mechanism were agreed, it is improbable that the CJEU would agree to the EU entering into such an agreement.

“Under these plans, a deal on rights currently seems unlikely, and that means UK as well as EU citizens will lose out.

“Rights are not worth much if they cannot be enforced. As we explain in The Brexit Papers Third Edition, if the UK and EU come to an agreement on the existing rights of EU citizens, there must be an ultimate authority with jurisdiction to interpret those rights to guarantee the terms of the deal.”

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