The Bar Council has called for a ‘shared tribunal’ to hear grievances of EU citizens living in the UK after Brexit, and has warned people risk losing out if the government insists on breaking away from the Court of Justice of the European Union.
The bar’s representative body said the government ‘must articulate’ a plan for an alternative enforcement mechanism.
As it stands the government has said domestic courts could be used to enforce EU citizens’ rights, but the council said this would ‘remove’ their right to have the CJEU as the ‘final arbiter’ while UK citizens living in the EU would still continue to have access to the CJEU.
Hugh Mercer, chair of the Bar Council’s Brexit working group, said: ‘This is not the same as having full access to the English courts… there is a perceived difference in interpretation between the English courts and the CJEU.’
He added: ‘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.’
Mercer warned though that creating an alternative body will be difficult because the 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 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, he added.