It is good to see cooperation in criminal justice on the prime minister's Brexit agenda, but it is in our interests that this includes civil justice too.
It was good to see that cooperation in justice made it on to the list of the prime minister’s 12 guiding principles for Brexit, even if only at the end (principle 11) and only as regards criminal justice: ‘With the threats to our common security becoming more serious, our response cannot be to cooperate with one another less, but to work together more.’
The topic of cooperation in justice has been singularly lacking in the debate so far. There is a good deal at stake. The evidence being given to various parliamentary select committees demonstrates this. There, justice is given the gravity it deserves, covering the breadth of substantive and procedural cooperation involved. I touch below only on the surface of some of them, and chiefly from evidence given to the Commons justice select committee.
To start with criminal justice, it is worth reading the evidence given by the National Crime Agency (NCA), a government department which used to be accountable to Theresa May when she was home secretary and is still accountable to her government. This is what is says about some of the instruments or agencies to which the UK will lose access on Brexit:
- Europol – ‘arguably the most important measure the UK has access to as part of its EU membership … a vital tool to tackle serious transnational organised crime and terrorism, and volume crime causing harm to the UK.’
- European arrest warrant – ‘leaving the EAW would therefore pose a huge public protection risk to the UK … bilateral treaties would need to negotiated which would be hugely difficult to maintain and service, and would likely result in costs rising and the numbers of arrests falling.’
- Schengen information system – ‘loss of access to SIS II would seriously inhibit the UK’s ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice.’
- European Criminal Records Information System (ECRIS) – the NCA says it can now take just two minutes for information to be given by Germany about past convictions, but if this system is to continue it is clear from other evidence given to the select committee that the UK will have to stay compliant with EU data protection laws even when no longer an EU member.
You can see why the prime minister is keen to work together more on criminal justice.
But she did not mention civil justice, although this raises serious issues, too. There is a significant body of EU law on civil justice matters: on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters (Brussels I) and in family matters (Brussels IIa, Rome III and more); on the applicable law for contractual and non-contractual obligations (Rome 1 and Rome II); on cross-border service of documents, taking of evidence, maintenance obligations, and the provision of specific rules for small claims or uncontested claims.
‘Which?’, the consumers organisation, begs the government to do all it can to preserve the status quo for consumers: ‘It does not matter how robust the UK’s consumer protection rules are if traders can circumvent them in practice by choosing to have disputes with UK consumers resolved in another country’s courts under another country’s laws.’ They don’t want the rules which now apply to non-EU disputes to become the norm, because they are even more complex and generate obstacles and uncertainties for consumers and traders.
The Great Repeal Bill, which will aim to resolve all transitional problems by passing EU law into UK law, will not work in those areas which rely on mutual recognition, because there will need to be bilateral agreement to bring them into effect. No one yet knows whether the negotiations will include this.
As always, there are international instruments which perform some of the same functions as EU law. There are Hague conventions, for instance. First, the UK will have to sign up to them, since the EU is now usually the signatory. Second, some witnesses criticise their scope and efficiency as opposed to what we already have through the EU.
These are not the only current Brexit enquiries of interest to lawyers. For instance, the justice sub-committee of the European Union select committee of the House of Lords is going over much of the same civil justice ground. And the joint Lords and Commons select committee on human rights has just published a report on the human rights implications of Brexit. The Bar’s ‘Brexit Papers’ and the Law Society’s ‘Brexit and the law’ are also good sources of information.
The lord chancellor said recently: ‘It is in the interests of all European countries who want to do business here that we maintain civil justice cooperation when we leave the EU’ – but it is in our interests, too.