“We are in rather a jam as a nation” – Brexit and civil justice issues

On 31 January 2017 the EU Justice Sub-Committee heard further evidence in its enquiry into the arrangements for civil justice co-operation and the role of Court of Justice of the European Union (CJEU) after the UK leaves the EU. In the hot seat this time was Sir Oliver Heald QC MP, Minister of State for Justice. Senior judges, academics and practitioners have already appeared before the Sub-Committee during the course of this ongoing enquiry.

The Sub-Committee chair, Baroness Kennedy QC, referred to the prospect of being involved in an accident in a hired car on holiday and nicely summarised how the EU’s cross border rules can affect ordinary people: “At the moment, one can go to a court here and get enforcement in Portugal, Italy or Poland. These issues might not be at the forefront of the minds of Ministers wanting trade agreements, but they have a real impact on people’s lives.” She also pointed out that existing EU “regulations introduced to cross-border situations help the little guy in particular; we are not talking here about the big corporates, which can get the lawyering done by throwing money at it, but about ordinary people doing business or travelling or who have family relations who live elsewhere.”

The Sub-Committee focused on six relevant areas.

  1. How will the UK maintain civil justice co-operation post Brexit without the oversight of the CJEU?
  2. The importance of the recast Brussels I regulation (covering cross-border jurisdiction and enforcement)?
  3. The Brussels IIa regulation and the maintenance regulation (cross-border family and child custody/access)?
  4. Which aspects of the three regulations will the Government be keen to maintain post Brexit?
  5. Will the common law rules be an adequate replacement?
  6. Does the Government wish to see the rules contained in the three regulations incorporated via the promised Great Repeal Bill?

Baroness Kennedy asked whether the CJEU had any future role in UK law and whether the UK’s Brexit negotiation team should include ‘a due regard’ rule in any agreement with member states of the EU. The Minister would not be drawn on this point and questioned what a ‘due regard rule’ might look like and – not for the last time – said that the UK negotiation team wanted to keep its powder dry before negotiations commenced. Lord Cromwell intervened and suggested that UK judges will surely keep an eye on CJEU judgments? His question may have been rhetorical and met with various nods of approval.

Taking points 2, 3 and 4 together, the Minister agreed that cross-border enforcement of judgments, recognition of jurisdiction, family/maintenance issues, consumer rights and motor accident claims – involving the Baroness’s “little guy” – were indeed important. The Minister stressed that some of these areas were also important to business, but again kept his powder dry when pressed whether these areas were high in the minds of the UK’s negotiating team – though it seemed pretty obvious that they were.

When asked if parts of the Brussels regulations are considered more important than others the Minister said that no parts would be abandoned. There appeared however a general feeling that some parts of the rules (not yet specified) might be offered up as a bargaining tool during negotiations.

In relation to point 5 above, Baroness Kennedy asked whether common law rules would be an adequate replacement for those presently set out in EU law? She emphasised the point saying that surely the UK would not go back to pre EU days, particularly as many EU regulations and laws were driven by UK lawyers. The Minister stated that “the preference is to reach agreement within the two-year period and for it to be implemented thereafter. If that were not possible, there are common-law rules.” Lord Polak mentioned that delays in reaching an agreement with EU partners within a two-year timescale would result in a hiatus on these civil issues, which was to be avoided if at all possible.

Lord Cromwell said that others who had given evidence to the sub-committee (albeit all of them lawyers) had raised concerns about the possible loss of legal services activity and revenue in the UK after Brexit. The Minister said that the UK’s legal sector was particularly strong and attracted work from around the world, adding that 50 per cent of contracts are written in English and that the legal profession should not be nervous about the loss of business.

Lord Judd, in my opinion, then made the point of the day. He said that listening to lawyers throughout the evidence sessions had changed his mind about the profession; the wisdom and guidance of lawyers was vital in a civilised society. He described the nation as being “rather in a jam” (perhaps channelling Bertie Wooster?) because the Government doesn’t want to give its hand away before the exit negotiations. It is worth concluding this report with Lord Judd’s summary, addressed to the Minister, of the very real tension between popular perception and the political and commercial reality of the need for meaningful co-operation on civil justice matters with our European partners:

“… everything that you have been saying this morning is that rationally as a nation we can handle our law in these areas only by co-operation and working with others internationally. I believe that the Government themselves, and very important parts of the Government let alone the popular press, have been generating a culture of, “We are coming away from all this legal domination by Europe.” You are saying, “It’s not domination. We’ve got to have co-operation with Europe.” You will have quite a big public relations exercise here at a certain point in telling the British public why we have to go on having all this co-operation. It is terribly important that they understand.”

Jef Mitchell, consultant, BLM

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