Brexit: Civil Justice treaty needed to protect UK interests

18 July 2018

Following the Government's Brexit White Paper, the Bar Council has published the text of a draft agreement that would ensure that court judgments made in the UK and EU can still be enforced across international borders after exit day.

According to the authors, an agreement on judicial cooperation will be crucial in giving legal certainty to the business transactions, consumer purchases and family custody arrangements that affect the day-to-day lives of UK and EU citizens, many of whose interests will continue to be interdependent after the UK leaves the EU.

Chair of the Brexit Working Group, Hugh Mercer QC said:

"As things stand, it is not clear if a small UK engineering firm supplying parts to a Spanish manufacturer will be able to enforce a UK court judgment for non-payment of invoices in Spain. It is also unclear if a British father estranged from his German wife who has taken their children away will be able to enforce a UK court judgment granting him access to those children during school holidays.

"If small firms are to trade confidently with EU27 countries after Brexit, they need to know that the laws underpinning every-day transactions can be enforced across the channel. Without the right agreements in place, a no-deal Brexit will put hard-working small businesses owners in a very precarious position and could cause real turmoil for separated families on different sides of the channel."

The Bar Council says the text should form the basis of a separate treaty between the UK and EU.

"These issues are fundamental to people's lives and their livelihoods and they should sit above political rhetoric and negotiation. A separate treaty is the best way of protecting UK interests abroad."

Negotiating an agreement

One of the authors of the text, Alex Layton QC said:

"On the CJEU, we have proposed wording which is directly lifted from Protocol II of the Lugano Convention to cater for non-EU contracting states, so it should in principle be acceptable to the EU. But we have also added a proposal of our own which would provide for a more binding effect of CJEU judgments in cases involving an EU national.

"The draft also provides for the amendment of the relevant regimes in light of developments in EU law.

"The EU may argue that this regime can only apply to Member States or those within the single market; but precedent suggests otherwise: the earlier Lugano Convention had Poland as a party before it joined the EU and the current Lugano regime provides for the accession of non-EU and non-EFTA states if the other parties (including the EU) agree."

Background

In December 2017, the Bar sent letters to Michel Barnier for the EU27 and to the then UK Lord Chancellor, setting out its idea for a separate approach to civil justice matters in the UK withdrawal negotiations, leading if necessary, to a stand-alone treaty, capable of surviving even a hard Brexit. This present paper takes that idea one step further by presenting a draft proposal for such an agreement.

CLICK HERE FOR A LINK TO THE DRAFT TEXT

ENDS

Notes to Editors

  1. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk.

  2. The Bar Council represents barristers in England and Wales. It promotes: 

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad.

 

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board