British ministers must work with the EU to create a “shared tribunal” that will hear claims of EU citizens living in the UK after the country quits the bloc, English Bar leaders argued yesterday.
The lawyers said that if the UK government was determined to reject any role for Europe’s highest court after Brexit, “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”.
Such a court, a senior figure at the Bar Council said, would need to meet the standards of a court of law. Hugh Mercer, QC, of Essex Court Chambers, who is the chairman of the council’s Brexit working group, said: “Arbitration would not be suitable because the process is not transparent and, for historical reasons, not generally acceptable in EU states.”
But Mercer warned that creating a new tribunal would be fraught with difficulties because the existing rights of EU citizens in the UK are based on EU law and Brussels is likely to insist that its Court of Justice 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,” the silk predicted.