The Bar Council has backed a continuing role for the Court of Justice of the European Union (CJEU) in protecting the rights of EU citizens living in the UK post-Brexit. In a statement today, it described the prime minister's proposals for protecting EU residents, to be published on Monday, as a solution to 'only half the problem'.
Hugh Mercer QC, chair of the bar's Brexit working group, said: 'The prime minister has said she is committed to making a deal to protect the rights of EU citizens living in the UK after Brexit, but she is unlikely to concede a role for the European Court of Justice, and that could be a major stumbling block in negotiations.'
The European Union has said EU citizens in the UK should continue enjoying the same rights as they do now, enforceable by the CJEU.
The latest edition of the bar's Brexit Papers, an analysis of legal issues raised by leaving the European Union, calls for the creation of a body to enforce the terms of any deal reached over citizens' rights. It is published on the first anniversary of the Brexit referendum.
Mercer said that 'certainty is currently provided by the interpretive role of the CJEU and to reject this would deprive EU citizens in the UK of that safeguard.'
He suggested establishing 'a mechanism’ for obtaining an advisory opinion in disputes before UK courts or for UK courts to have due regard to CJEU rulings, and an obligation of consistent interpretation. ‘Rights are not worth much if they cannot be enforced,’ he said.