Brexit: Lords contemplate new ‘UK treaty court’ to sit above Supreme Court

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Interesting options for post-withdrawal dispute resolution

A House of Lords select committee has heard evidence from academics and think tanks this week on what court could govern the final Brexit treaty and hear citizens’ rights cases. One of those options is the creation of a “UK treaty court” which would sit above the UK’s existing Supreme Court to hear matters relating to the trade deal.

Raphael Hogarth, research associate at the Institute for Government, explained to the EU Justice Sub-Committee that a UK treaty court would only work if the trade deal adopted a so-called “two-pillar system”. This is where there is a separate pillar of cases dealing with matters which would have to be considered by the Court of Justice of the European Union (CJEU).

Hogarth talked through some of the other options available to the UK government: the most-talked about option is that the UK and the EU agree to the jurisdiction of the existing EFTA court (which currently governs treaties between the EU and the EEA countries).

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But there could also be a “joint court” with representation from the EU and the UK and, potentially, representation from a neutral third party. The fourth option cited by the Institute for Government is using arbitration which is frequently adopted for international treaties. Last but not least, option five would be “dispute resolution by joint committee” which Switzerland currently uses in its agreements with the EU but with which the EU has recently expressed dissatisfaction.

Evidence given at the session demonstrated that the EU will only agree to a dispute resolution process which, it believes, will allow it to retain “autonomy over EU law”, as Hogarth put it.

Hogarth was critical of concerns raised by Lord Neuberger last summer about the role of judges in post-Brexit rulings. The ex-president of the Supreme Court, at the time, raised concerns that the UK government had not made it clear enough in its Withdrawal Bill whether UK judges should consider the judgments of the CJEU after exit day. Hogarth described this as “an extraordinary intervention” by Neuberger into the Brexit debate.

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