PM's commitment on 'acquired rights' is only half the story

23 June 2017

A deal on rights for UK and EU citizens post-Brexit, indicated by the Prime Minister today, only solves part of the problem, the Bar Council Brexit Working Group has said today as it publishes The Brexit Papers: Third Edition, a plain-English analysis of the big legal issues around Brexit.

Chair of the Brexit Working Group Hugh Mercer QC 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.

"Apart from agreeing the categories of citizens who have acquired these rights, the big question is; how will UK and EU citizens enforce the terms of that deal if they run in to difficulties with national authorities, or if the UK and other states disagree over the operation of the new rules?

"Rights are not worth much if they cannot be enforced. Clear and useable enforcement mechanisms are essential to the rule of law. 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.

"As we explain in The Brexit Papers Third Edition published today, if the UK and EU come to a deal on rights, there must be a body that can enforce the terms of that deal.

"The Prime Minister has said that Brexit means the UK will make and interpret its own laws, but the existing rights of EU citizens 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 acquired rights of citizens.

"The answer may be to create 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 to ensure equality, legal certainty and the maintenance of the quality of the rights."

The Brexit Papers

The Brexit Papers: Third Edition, published today offer Government, parliamentarians, the media and the public a concise and informative evaluation of the legal challenges posed by leaving the EU, and their practical implications for the economy and society.

A total of nine new papers are published as part of The Brexit Papers: Third Edition setting out in plain English the key legal challenges the Government will face on a range of policy issues including acquired rights, WTO, agriculture, fisheries, product standards, public procurement, environment, dispute resolution, and the CJEU.

They offer a series of recommendations to Government, and each can be read as a stand-alone document.

ENDS

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