Lawyers have welcomed with relief the declaration on ‘legal certainty and clarity’ - including mutual recognition and enforcement of judgments - in the Brexit phase 1 agreement reached on Friday. However the Law Society cautioned that the ‘real complexity’ of the deal lies ahead.
Among several breakthroughs, the joint report of the negotiators of the EU and the UK government appears to resolve the row over the role of the Court of Justice of the EU in protecting the rights of EU citizens in the UK after 2019. In a significant concession, Brussels has abandoned its demand for the CJEU to have continued jurisdiction. Instead, UK courts shall have ‘due regard’ to relevant decisions of the CJEU. Meanwhile, consistent interpretation of citizens’ rights should be ’supported and facilitated by an exchange of case law between the courts and regular judicial dialogue’.
The UK government and the European Commission would have the right to intervene in relevant cases before the CJEU and UK courts and tribunals respectively.
On more general cooperation in civil and commercial matters, the joint report says ’there is a need to provide legal certainty and clarity’. It sets out a ’general consensus that EU rules on conflict of laws should continue to apply to contracts before the withdrawal date and non-contractual obligations where an event causing damage occurred before the withdrawal date. ’There was also agreement to provide legal certainty as to the circumstances under which union law on jurisdiction, recognition and enforcement of judgements will continue to apply, and that judicial cooperation procedures should be finalised.’
Likewise, on cooperation in criminal matters 'there is a need to provide legal certainty and clarity’, the agreement states.
On ongoing judicial procedures, both parties have agreed that the CJEU should remain competent for UK judicial procedures registered at the CJEU on the date of withdrawal, and that those procedures should continue through to a binding judgment, it adds.
In an important provision for the legal profession, rights to recognition of professional qualifications will be ’grandfathered’. However Law Society council member Jonathan Goldsmith points out in an article for the Gazette that only two narrow categories of lawyers will benefit.
The UK government will bring forward a bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the agreement, the report states. ’Once this bill has been adopted, the provisions of the citizens’ rights part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless parliament expressly repeals this act in future.’
Law Society vice president Christina Blacklaws welcomed the report’s indications that the UK is heading for a ‘soft Brexit’. ’We’re particularly pleased that the UK government has asked for a two-year transition including remaining for that period in the customs union and the single market,’ she said. 'The complexity of our relationship with the EU means that negotiations must be given adequate breathing space to achieve the best possible deal for the UK and the EU.’
Edward Wanambwa, partner at London firm Russell-Cooke, described the agreement as particularly good news for businesses that rely on staff from other EU member states. ’Whilst many commentators assumed there would be wide protection for nationals of other EU member states who already lawfully reside in the UK, the extent of the protection and the specified date from which those protections would be conferred were not entirely clear,’ he said. ’That the joint report states that “The specified date should be the time of the UK’s withdrawal”, instead of an earlier date, will come as a relief to many.’