A continuing formal reciprocal judicial relationship with the EU will be essential after March 2019, the government conceded today. In a position paper on civil judicial cooperation, the government says it will seek an agreement allowing for ‘close and comprehensive cross-border civil judicial cooperation on a reciprocal basis’.
The paper is one of a series published this week setting out the UK’s stall in the next round of Brexit negotiations. A paper on the future relationship with the Court of Justice of the European Union is expected to be published tomorrow.
Legal professional bodies described the proposals as a step in the right direction - but warned that the devil will be in the detail.
‘Civil justice cooperation rules set the basic parameters that let us live, work and play across Europe,’ said Law Society vice president Christina Blacklaws. 'They allow us clear ways to resolve problems when they occur across borders, and give business defined rules to follow with the confidence UK business needs to trade and invest. Making sure these clear and effective rules continue or are replaced will be a vital part of making Brexit work.'
The proposals will spark controversy among proponents of a 'clean break' Brexit, under which future relationships would rely on multilateral conventions. The paper says that while existing conventions can provide for rules 'in some areas', they could not replace the interaction, based on mutual trust between legal systems, that currently benefits both EU and UK business, families and individual litigants.
'The optimum outcome for both sides will be an agreement reflecting our close existing relationship, where litigating a cross-border case involving UK and EU parties under civil law, wherever it might take place, will be easier, cheaper and more efficient for all involved,' the paper states. 'The UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework.'
Among the proposals in the paper is that the UK remains a party to existing civil justice cooperation measures including the Lugano Convention on recognition of judgments and the Hague Conventions on private international law.
Blacklaws said that the government 'clearly has a big task ahead of it to turn these ideas into details that can effectively replace the range of agreements and institutions outlined'. However, she said it is 'encouraging that the government has chosen to listen to the concerns raised by the solicitor profession, and give civil justice cooperation the high priority it clearly needs'.
Echoing the sentiment, bar chair Andrew Langdon QC, said that 'on the face of it' the position paper includes 'sensible and sound proposals and shows that the government has been in listening mode'.
He noted that the paper identifies the mutual benefits that can be expected to flow from continuing co-operation between the UK and the EU, for citizens as well as businesses who are naturally looking for certainty to plan ahead. 'We are encouraged by the fact the government sees value in preserving much of what is already in place in existing arrangements between the UK and the EU, as well as the UK’s relationships internationally and third parties.'
However, he added that 'the devil will be in the detail'.
Family law group Resolution welcomed the thrust of the position paper. Daniel Eames, chair of Resolution’s international committee, said: ‘We agree that close co-operation with the EU is vital on family law matters post-Brexit. ‘Without reciprocal rules, there can be no legal certainty in treatment with all the ensuing complications, delays and potential costs for families and children or local authorities undertaking their child protection function,' he added.
What the EU negotiators will make of the proposals remains to be seen. Gary Campkin, director of policy and strategy at TheCityUK, said: ‘We hope the EU recognises the UK’s proposals as the significant positive step they are and works with the UK to achieve the best outcome for businesses on both sides of the channel.’
However William Longrigg, partner at international firm Charles Russell Speechlys, commented: ‘It is going to be very hard to negotiate with the EU on any sort of continuing reciprocity which we currently have in family law issues without continued agreement from the UK to be subject to the jurisdiction of the European Court of Justice. It seems unlikely that the EU would be in any way interested in negotiating with us in depth without that, leaving the UK potentially in a position of simply losing the reciprocal nature of these laws which have developed over decades – and indeed losing its place at the table as they evolve.’
7 So what does UK want to do with EU in future? Quite a lot. But the paper doesn't say *what* exactly. I hope the govt at least tells the EU pic.twitter.com/dkaXQSvcn2— Steve Peers (@StevePeers) August 22, 2017
... knowing full well that International courts are not a bogeyman but essential feature of dispute resolution in globalised world.— Adam Wagner (@AdamWagner1) August 22, 2017