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Brexit: negotiating priorities for justice system

22 March 2017

The Government must address four priorities for the justice system in negotiating the UK's new relationship with the EU, says the Justice Committee.


The report recommends that the Government should:

  1. Continue co-operating on criminal justice as closely as possible
  2. Maintain access to the EU's valuable regulations in inter-state commercial law
  3. Enable cross-border legal practice rights and opportunities
  4. Retain efficient mechanisms to resolve family law cases involving EU Member States and the UK

Criminal law

Crime is ever more international. EU mechanisms to combat illegal activities across borders include:

  • the European Arrest Warrant, accelerating the extradition of those suspected or convicted of offences elsewhere
  • investigative resources in Europol and Eurojust, supporting police, prosecutors and judges
  • information-sharing tools, giving rapid access to suspects' criminal records and biometric information.

Committee Chair Bob Neill MP said:

"We welcome the Government's signals that it intends to continue to cooperate with the EU on criminal justice. The seriousness of the matter and the degree of mutual interest give weight to the suggestion that this aspect of negotiations be separated firmly from others—it is too precious to be left vulnerable to tactical bargaining."

Civil law

In civil justice, EU regulations establish procedures on choice of jurisdiction, and mutual recognition and enforcement of judgments, for transnational disputes.

The Brussels I Regulation governs commercial matters, while Brussels II applies to divorce, child contact and other family cases.

Commercial law

The report recommends that the Government should aim to replicate the provisions of Brussels I Recast as closely as possible, perhaps using the EU-Denmark agreement as a blueprint. As a minimum, it must endeavour to secure membership of Lugano II and the 2005 Hague Convention in its own right. Rome I and II should be brought into domestic law. The Government must also address the potential liabilities for non-performance of contractual duties that financial institutions may face as a consequence of Brexit.

Family law

The Committee recognises that Brussels IIa and the Maintenance Regulation are not without fault: races to issue resulting from Brussels IIa's divorce provisions are particularly undesirable. However, they are improvements over their default alternatives, and mutual recognition and enforcement of judgments in family cases is of demonstrable value in resolving cross-border instances of child abduction and non-payment of maintenance.
The report recommends that the Government should seek to maintain the closest possible cooperation with the EU on family justice matters, and in particular to retain a system for mutual recognition and enforcement of judgments.

The Court of Justice of the EU

The Court of Justice of the EU (CJEU) is the ultimate interpreter of EU law. The Government has in recent months repeatedly stated its intention to end its jurisdiction in the UK. However, the report concludes that it remains unclear how civil justice co-operation will work without the CJEU or another court playing a limited arbitral role. 

Bob Neill MP said:

"Protecting the UK as a top-class commercial law centre should be a major priority given the clear impacts on the economy of failure to do so: the Government should look to replicate existing provisions as closely as possible.

Similar provisions in family law provide greater speed in child abduction cases, for example, and represent improvements over their default alternatives.

We believe that a role for the Court of Justice of the European Union in respect of these essentially procedural regulations is a price worth paying to maintain effective cross-border tools of justice."

Cross-border legal practice rights and opportunities

The Committee recognises that the legal services sector underpins many areas of UK economic activity; the report concludes that its ability to continue to facilitate these in the EU will diminish without protection of existing practising rights there for UK lawyers, and that there is also clear evidence of reciprocal benefit. The report recommends that the Government include achieving this protection in its Brexit negotiating strategy.

The Committee believes that overall the implications of Brexit for the legal services sector give cause for concern, but not hyperbole: most of the sector's strengths are unabated, and sensible discussions between the UK and EU ought to protect many of the advantages of their existing cooperation. However, the report recommends that the Government should consider and promote the legal services sector in the context of its expected post-Brexit trade recalibration and the pursuit of new deals; it should outline steps it will take to protect and provide opportunities for the sector.

Bob Neill MP said:

"The UK's legal services sector makes a £25.7 billion annual economic contribution. It relies on openness, and its lawyers' current rights to practice across EU Member States help small businesses and ordinary people as well as large firms and wealthy individuals.

We recommend that the Government protect these powers. It should also outline steps it will take to provide opportunities for the sector more broadly—with concerted efforts by EU law firms to use Brexit to win clients from UK competitors—though we have faith in UK legal services' fundamental strengths."

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