Implications of Brexit for the justice system Contents


43.Continued criminal justice cooperation is a critical justice priority for Brexit negotiations: it impacts upon the safety of citizens, of both the UK and the rest of the EU. Cross-border solutions are required to combat the growth of transnational crimes. Other priorities must include the need to protect vital mechanisms in international commercial law, such as mutual recognition and enforcement of judgments. Failing to do so would lead to unwanted consequences for the national business ecosystem, and the UK economy in turn. The essential health of the legal services sector and attractiveness of UK courts and law will provide considerable resilience. Key also to this, and to access to justice for ordinary people and small firms, is retention—to the highest degree possible—of cross-border practising rights. Finally, mutual recognition and enforcement in family law can be crucial in, for example, resolving child abduction cases with appropriate haste; we recognise that support for some of these provisions is weaker than their parallels in other areas, but they are preferable to the available alternatives.

44.We recommend that the four principal aims of the Government’s approach to justice matters in Brexit negotiations be:

(1)Continuing cooperation on criminal justice as closely as possible;

(2)Maintaining access to the EU’s valuable regulations on inter-state commercial law;

(3)Enabling cross-border legal practice rights and opportunities; and

(4)Retaining efficient mechanisms to resolve family law cases involving EU Member States and the UK.

45.These are objectives for the end of the process, but negotiations on these matters may not have concluded before the UK has formally left the EU. Transitional provisions will be essential in all areas discussed. Daniel Eames argued “the real concern is obviously the transitional arrangements and the hiatus we face in the meantime, which will cause families real difficulties”.103 In criminal justice, Professor Tim Wilson suggested that the UK and EU agree to freeze some arrangements beyond that date “so that we do not move down to inferior types of arrangements for a transitional period”.104 Simon Gleeson observed that the average duration of most financial contracts is around two years: as the moment of Brexit draws closer, the risk of legal complications (as discussed in chapter 3) grows.105 This demonstrates the urgency of transitional arrangements.

46.It is not merely the actuality but also the possibility of adverse outcomes from Brexit negotiations that can damage the UK legal sector, with the uncertainty in the sector remarked upon by many witnesses—especially within the commercial field. The Government did not wish to disclose its negotiating position before triggering Article 50, and we did not press it to. Nevertheless, we urge the Government to recognise that providing more information from that point would reduce—and therefore mitigate the risks of—this uncertainty.

47.Transitional arrangements are needed in each sector we discuss, and their absence creates uncertainty. We ask the Government to ensure, as a matter of priority, that it seek to agree transitional arrangements for criminal, civil and family law cooperation with the EU, to come into effect upon Brexit.

17 March 2017