In the early stages of the formal Brexit negotiations between the British and European Union representatives, a key obstacle to progress is the issue of citizens’ rights.

The British Secretary of State for Exiting the European Union – David Davis – seems concerned that the initial ‘offer’ on the rights of citizen’s in the UK in the post-Brexit era, was immediately disparaged by senior officials in Brussels.

Michel Barnier, who is leading the negotiations on behalf of twenty-seven EU member states, the institutions of the union and, in his view, the citizens of the European Union, is determined to protect the benefits and privileges accumulated over fifty years for each citizen of the union.

Monsieur Barnier has stated repeatedly that this is a key issue on which both sides need to agree – especially in respect of accumulated rights:

What does this mean in practice for the Brexit negotiations?

It is clear from the press conferences held after the first rounds of negotiations that Michel Barnier will not yield ground on the rights of citizens. It is, in essence, one of the European Union’s ‘red lines’ in the negotiations leading up to the United Kingdom’s exit from the EU in March 2019.

For the British government, freedom of movement, enshrined in the fundamental rights of citizens on the EU, is possibly the most politically sensitive issue in the entire Brexit process.

The key obstacle to progress on all of the issues facing the negotiators is trust. Barnier has been quite explicit in his pronouncements about the need for trust in forging a new relationship between the UK and the EU. He simply does not believe that the British courts are capable of acting as the legal guardian of rights for nationals of the twenty-seven member states who will continue to reside in the UK after Brexit. Conversely, he believes the European Court of Justice (ECJ) in Luxembourg is best placed to protect the rights of UK citizens who will continue to reside in EU countries after the UK leaves the union. And since there cannot be two systems, it is also the court that the EU is determined to ensure has jurisdiction over the rights of EU citizens in the UK after Brexit.

There are only four practical options available to the UK and the European Union, to resolve the issue of citizens’ rights before the exit deadline of the 29th March 2019:

The European Court of Justice continues to enjoy primacy over UK courts in relation to citizens’ rights.

The UK accepts that the European Court of Justice will remain the court of jurisdiction for all post-Brexit disputes on citizens’ rights and that it acts with authority, as it does now, as the final court in the British legal process, meaning that decisions reached by the ECJ are binding on the British courts – including the UK Supreme Court.

This option, if accepted by both sides, has the potential to be politically catastrophic for the British government. It is the option that David Davis and his colleagues in the British cabinet will seek to avoid.

British courts act as the guardian of citizens’ rights for EU citizens in the UK

The EU accepts that the British courts, with their history and long-standing international reputation for fairness and the balance of justice, should become the legal structure charged with protecting the rights of EU citizens in the UK from the date of the UK’s exit from the European Union.

This is the British government’s preferred option. The European Union will not accept this option as proposed by David Davis and his team.

The fact that the UK does not have a written constitution in which the rights of citizens are enshrined and that those rights cannot be altered at the whim of future governments, is a key consideration.

The Treaty of Lisbon (of the European Union) enshrines the fundamental rights of citizens. As a member of the EU, the rights of UK citizens – as citizens of the European Union – are enshrined in fabric of the EU and protected by the courts of the European Union. From the very first founding treaty in 1957, the aspirations for free movement were set in place.

The European Court of Justice acts as the highest court in the land(s). When the UK ceases to be a member of the EU, the rights of UK citizens – as citizens of the European Union – will disappear and the highest court in the land will be the UK Supreme Court.

The view of the European Union is that the accumulated rights of citizens and the obligations of governments to protect those rights cannot be placed outside of the rights enshrined in the Treaty of Lisbon.

We must remember that the Treaties of the European Union are, de facto, the primary legislation of the European Union. They represent the nearest thing the EU has to a constitution – note: the EU tried to introduce a constitution in 2003/2004 but was blocked from doing so, in part, by the UK government and the no vote in the referendums held in countries such as the Netherlands – Nevertheless, the treaties are overseen by the ECJ and the European Union will not cede ground on this during the negotiations with the British government.

A third court is established

The UK and the European Union develop a compromise solution in which a ‘third court’, combining representatives from the UK judiciary and judges from the ECJ, sit in judgement on cases specifically dealing with the rights of UK citizens living in EU countries and EU citizens living in the UK.

This is the most likely compromise solution, if the British government finds the jurisdiction of the ECJ in its current form to be unacceptable.

It is also the most complicated of the four options available.

Where would the court be located?

Would British judges be solely responsible, within this new court, for presiding over cases involving citizens covered by UK legislation? And ECJ judges for British citizens living in other national jurisdictions in the EU and, relying on equivalent rights set down in EU law?

The legal complexities involved in creating such a court creates the fundamental obstacle to this solution. Simply put, it is inconceivable that a new court would be up and running by the time that the UK leaves the EU.

There cannot be a legal vacuum from midnight on the 29th March 2019.

While this is the most likely compromise solution, it would require a transition period of years to enable the court to be established and to operate under a new international agreement or treaty between the UK and the European Union. In consequence, even if this solution is acceptable to both parties, the UK will be forced to accept the continued authority of the European Court of Justice during any transition period.

This leads to the final option –

Legal transition as part of a wider transition period before a full exit from the EU by the UK

In the absence of an acceptable agreement -a legal agreement as part of the UK exit from the European Union – on the legal arbiter of citizens’ rights, a transition period is almost inevitable.

Even this option, to delay a final decision on the longer-term arrangements for jurisdiction over citizens’ rights, comes with obstacles for both sides involved in the negotiations.

The first obstacle is political. The British government, in accepting that a decision on jurisdiction will be delayed, albeit temporarily, will inevitably leave itself open to accusations that it has deferred to the European Union on one of the key political issues that led to the vote for Brexit in the UK. Namely, that those who voted to leave the European Union were motivated by a desire for the UK to control free movement across its borders.

Any transition phase on citizens’ rights will require the UK to accept free movement and the jurisdiction of the European Court of Justice. The alternative would be for David Davis and the British government to allow the UK to leave the EU without a formal agreement on exiting the union. If all other issues such as the single market, customs union, financial obligations and the Ireland-Northern Ireland border had been finalised prior to March 2019 but the issue of citizens’ rights had not been settled, would the UK risk foregoing the other elements already agreed?

A further question arises. When does a transition become semi-permanent? If there is a transition period of two years, or five years, what happens if there is a change of government in the United Kingdom? How committed would the UK be to developing and implementing alternative, permanent arrangements, if the transition arrangements prove to be politically acceptable in the UK during the transition period? In other words, what would be the motivation for resolving the political complexities with the EU on this issue?

In conclusion, it is worth underlining how deeply complex the issue of citizens’ rights is, as an area of negotiation. It requires imaginative solutions that do not, in their construction, inadvertently dilute the accumulated rights and benefits enjoyed currently by millions of people in the UK and the EU. Added to the complexities involved in agreeing a system of legal oversight in a post-Brexit landscape, are the wider political uncertainties facing the UK and other countries within the European Union.

The key certainty about this issue is the practical need for the UK and the EU to agree ‘something’ on the issue of the rights of citizens. A legal vacuum from the 30th March 2019, for politicians, lawyers, businesses and millions of individual citizens, is not one of the options available.