Former European Justice judge raises concerns over legal disputes post Brexit

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The UK Government has failed to address complex questions around how individuals’ legal disputes will be dealt with after Brexit, a former judge of the European Court of Justice (ECJ) has told MSPs.

Sir David Edward said UK ministers’ proposals – which he said have been described as “an undergraduate essay that would have failed” – are unclear on how the legal process would work for ordinary people.

The UK position paper on enforcement and dispute resolution, published last month, sets out options for enforcing withdrawal from the EU, new dispute resolution mechanisms and deals with the future role of the ECJ.

The ECJ is in charge of ensuring member states abide by EU law, including settling disputes between individuals, countries and EU institutions.

The UK Government has outlined several models for dealing with disputes after Brexit that it says show there is no need for the ECJ to be the final arbiter.

Sir David said: “The paper enforcement and dispute resolution appears to envisage that we are talking about disputes between the UK on the one hand and the EU on the other hand, but in fact EU law is not really about that at all, and certainly the jursidiction of the ECJ is not about that at all.

“One has to bear in mind that more than 50% of the caseload of the Court of Justice is concerned with cases arising in the national courts of member states about the rights of individuals, and that is not going to go away in the event of Brexit.”

Questions of “extreme complication” around how such disputes will be dealt with “are simply not properly addressed at all in the UK position paper”, Sir David said.

“This is a much more complex situation than the British government seems to recognise” he added.

Conservative MSP Rachael Hamilton suggested UK ministers could be deliberately holding back details as part of their negotiating position.

“From what I hear, part of the difficulty is the people who are writing these position papers and the people who are negotiating don’t want to hear from the experts,” Sir David said.

“I know of a number of people who have offered help and been refused.”

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