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Top QC expresses fear over waning influence of British lawyers in development of EU law

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Media doesn’t help by ignoring contribution by UK advocates, says Baroness Helena Kennedy

Baroness Helena Kennedy QC

Professors, QCs and a host of Lords and Baronesses put their heads together this week to consider what type of court should govern the final Brexit deal and citizen rights post-Brexit.

During the select committee session on EU justice, its chair, Baroness Helen Kennedy, and a top Cambridge EU law professor, Catherine Barnard, raised concerns over the declining role of UK-trained advocates in EU courts and in developing EU law.

Commenting on the contribution made by UK lawyers, Kennedy said that “Britain produces rather high quality lawyers” and the development of law benefits from “our place at the table”.

Barnard, who teaches at Trinity College in Cambridge and who is also a senior fellow of the academic network the UK in a Changing Europe agreed: “the UK has punched significantly above its weight” in the European Court of Justice (CJEU).

She said:

“We have very powerful and good advocates who… really shape the law and because our advocates are used to standing on their feet and used to being challenged by judges their input at hearings is really quite significant.”

The EU justice committee was discussing what court should govern both the Brexit withdrawal arrangements and how the rights and obligations of UK citizens or businesses under any agreement will be enforced.

Barnard explored the pros and cons of the UK being able to adopt a system of “docking” with the existing court of the European Economic Area (EEA), the EFTA court. Docking means having access to the EFTA court and “borrowing their systems” without having to be a member of the EEA.

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It would also mean the UK being under the supervision of what is known as the EFTA Surveillance Authority. This is not, Barnard pointed out, anything to do with surveillance in terms of being watched but simply means “overseeing”.

The issue of what court should be involved in the Brexit withdrawal arrangements is one of the ongoing sagas of the negotiations alongside the continued role of the CJEU in UK case law post-Brexit (which Lord Neuberger highlighted as a key issue for him at the end of last year).

Hugh Mercer QC, who was giving evidence to the committee alongside Barnard earlier this week, was more optimistic about the UK docking with the EFTA court. Mercer, the chair of the Bar Council’s Brexit Working Group, argued that “its style of reasoning” was closer to the UK courts than the CJEU. He even felt that there was every possibility “British lawyers could participate in the court”.

Kennedy also took the opportunity to vent frustration at the media for failing to do justice to the work of British lawyers. She said: “We’ve played a really important role in developing the law — though you wouldn’t think that if you read some of our tabloids or newspapers.”

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