Implications of Brexit for the justice system Contents

Conclusions and recommendations

Criminal justice

1.We welcome the Government’s signals of intent in relation to future UK-EU cooperation on criminal justice, which will be of critical importance in the context of modern crime. We recommend that the Government prioritise it accordingly in exit negotiations. 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. The security and safety of the UK’s citizens and residents is too precious to be left vulnerable to tactical bargaining. (Paragraph 18)

Family law

2.Brussels IIa and the Maintenance Regulation are improvements over their default alternatives. They are not without fault: races to issue resulting from Brussels IIa’s divorce provisions are particularly undesirable. Nonetheless, 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. (Paragraph 24)

3.We recommend 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. (Paragraph 25)

Commercial law

4.We recommend that protecting the UK as a top-class commercial law centre should be a major priority for the Government in Brexit negotiations given the clear impacts on the UK economy of failure to do so. Protecting court choices and maintaining mutual recognition and enforcement of judgments are central to this objective: 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. (Paragraph 32)

The Court of Justice of the European Union

5.The end of the substantive part of the CJEU’s jurisdiction in the UK is an inevitable consequence of Brexit. If the UK and the EU could continue their mutually-beneficial cooperation in the ways we outline earlier without placing any binding authority at all on that Court’s rulings, that could be ideal. However, a role for the CJEU in respect of essentially procedural legislation concerning jurisdiction, applicable law, and the recognition and enforcement of judgments, is a price worth paying to maintain the effective cross-border tools of justice discussed throughout our earlier recommendations. (Paragraph 35)

Legal services

6.The legal services sector underpins many areas of UK economic activity. Its ability to continue to facilitate these in the EU will diminish without protection of existing practising rights there for UK lawyers. There is also clear evidence of reciprocal benefit. We recommend the Government include achieving this protection in its Brexit negotiating strategy. (Paragraph 40)

7.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, we recommend 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. (Paragraph 42)

Conclusion

8.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. (Paragraph 43)

9.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. (Paragraph 44)

10.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. (Paragraph 46)

11.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. (Paragraph 47)





17 March 2017