We know quite a bit more this week than we did last week about the nitty-gritty of the Brexit negotiations in those areas of particular interest to the legal profession. This is chiefly because the European Commission has now published position papers containing the main principles of its negotiating stance in two vital areas: judicial cooperation in civil and commercial matters, and ongoing police and judicial cooperation in criminal matters.
As you would expect, they deal with the divorce (‘the ‘Withdrawal Agreement’), and not the future relationship after Brexit. They focus on the EU’s views on what should happen in those cases which are live when Brexit takes place, and mainly on what laws should apply to ongoing matters after the divorce.
The civil paper lists the 16 instruments covered, such as Brussels l and ll on jurisdiction, recognition and enforcement of judgements, Rome l and ll on contractual and non-contractual obligations, and similar regulations on insolvency, maintenance, service of documents, and so on – all vital for cross-border civil legal problems.
Not surprisingly, the EU position is that the instruments applicable before withdrawal, for instance relating to applicable law, competent court, choice of forum, or recognition and enforcement of judgements, should continue to apply after withdrawal.
Regarding criminal law, the principles are the same. Here the EU lists a dozen instruments to be covered by the Withdrawal Agreement, such as the European Arrest Warrant, various mutual recognition decisions, and requests for information between criminal investigation authorities.
In live cases covered by these instruments, the EU wants the Withdrawal Agreement to establish the procedural stage that has to be reached for the procedure to continue in accordance with relevant EU law after withdrawal. For those procedures which qualify, all applicable EU procedural rights should continue to apply.
Regarding classified or similar information obtained by the police and investigating authorities under the instruments, either side should be able to keep it, but the UK must keep its share in accordance with EU data protection laws. Such information must be kept by both sides also in accordance with existing EU rules on limitation of access, purpose restrictions, and limitations of retention periods.
I would love to be able to tell you the UK government’s position on this, so that we could judge the width of the gap requiring negotiation. But there is no UK government position yet published. Instead there continues to be openly-expressed doubts over the fundamental questions of our relationship with the EU, regarding how far in or out we should be.
The one area on which a UK position has been published is on citizens’ rights. The UK offer was published last week. Lawyers have a special interest here, because the EU specifically made mutual recognition of professional qualifications a part of citizens’ rights. Our government has devoted a paragraph to the question, which is worth quoting in full:
‘56) For mutual recognition of professional qualifications, the UK will seek to ensure that professional qualifications obtained prior to the date of the UK’s withdrawal from the EU continue to be recognised after the UK’s exit from the EU. The UK will also seek to ensure that where a person has begun an associated process that has not concluded by the withdrawal date, arrangements will be made to allow that process to continue. The UK will also give due regard to these professionals’ ability to practise without unfair detriment or discrimination.’
‘Seek to ensure’ is not the strongest phrase. In other parts of the document, we are told that certain rights ‘will apply’ and EU citizens ‘will be given’, but here the words are much fuzzier and less assuring. The EU’s own negotiating guidelines say that the Withdrawal Agreement ‘should ensure protection’ of mutual recognition rights. So there is a negotiating gap here.
Yet, the EU’s guidelines say nothing about practice rights, only mutual recognition of qualifications (i.e. without detail on how those qualifications may be used). Therefore, the last sentence in the UK offer quoted above – ‘will give due regard’ - goes beyond what the EU has so far offered.
Nevertheless, the Commission’s assessment of our government’s overall offer – and not just the professional qualifications part - is that it is less than generous. It draws three main conclusions: there is lack of reciprocity, since UK law will cover EU citizens in the UK, whereas UK citizens in the EU will be covered by more favourable EU law; there is no legal certainty, since EU citizens’ rights will be decided in the UK, without lifelong protection against UK law changes, and without direct protection from the Court of Justice; and there is lack of clarity of definitions, since they are based on UK law, rather than existing EU rules.
Think how much more complexity is to come.