Brexit: Justice For Families, Individuals and Businesses?: 17th Report of Session 2016-17
Brexit: Justice For Families, Individuals and Businesses?: 17th Report of Session 2016-17
Brexit: Justice For Families, Individuals and Businesses?: 17th Report of Session 2016-17
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HOUSE OF LORDS
HL Paper 134
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Membership
The Members of the European Union Select Committee are:
Baroness Armstrong of Hill Top Lord Jay of Ewelme Baroness Suttie
Lord Boswell of Aynho (Chairman) Baroness Kennedy of The Shaws Lord Teverson
Baroness Brown of Cambridge Earl of Kinnoull Lord Trees
Baroness Browning Lord Liddle Baroness Verma
Baroness Falkner of Margravine Baroness Prashar Lord Whitty
Lord Green of Hurstpierpoint Lord Selkirk of Douglas Baroness Wilcox
Lords Woolmer of Leeds
The Members of the Justice Sub-Committee, which conducted this inquiry, are:
Lord Cromwell Earl of Kinnoull Lord Oates
Baroness Hughes of Stretford Baroness Ludford Lord Richard
Lord Judd Baroness Neuberger Lord Polak
Baroness Kennedy of The Shaws Baroness Newlove Baroness Shackleton of Belgravia
(Chairman)
Further information
Publications, press notices, details of membership, forthcoming meetings and other information
is available at http://www.parliament.uk/hleue
General information about the House of Lords and its Committees is available at
http://www.parliament.uk/business/lords.
Sub-Committee staff
The current staff of the Sub-Committee are Paul Hardy (Legal Adviser), Tim Mitchell
(Assistant Legal Adviser), Donna Davidson (Clerk) and Amanda McGrath (Committee
Assistant).
Contact details
Contact details for individual Sub-Committees are given on the website. General
correspondence should be addressed to the Clerk of the European Union Committee,
Committee Office, House of Lords, London, SW1A 0PW. Telephone 020 7219 5791. Email
euclords@parliament.uk.
Twitter
You can follow the Committee on Twitter: @LordsEUCom.
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CONTENTS
Page
Summary 3
Chapter 1: Introduction 5
Background 5
Three Regulations and the CJEU 5
Box 1: The EUs Area of Freedom, Security and Justice:
civil justice cooperation 7
The purpose of this report 8
The EU Committees work 9
Chapter 2: The Brussels I Regulation (recast) 10
Background 10
The development of the Brussels Regime 10
British influence 10
What does the BIR do? 11
Box 2: The Brussels I Regulation (recast): jurisdictional rules 12
The importance of the BIR 13
Jurisdiction 13
Enforcement of judgments 14
Box 3: The Brussels I Regulation (recast): enforcement and
recognition of judgments 14
Box 4: Case study 1: the Brussels I Regulation (recast) 15
The Ministers view of the BIR 15
Potential problems if the UK leaves the BIR without alternative
arrangements in place 16
Loss of certainty 16
Impact on Londons legal market 16
Box 5: Choice-of-court agreements 17
Box 6: Lis pendens and parallel proceedings 18
Inability to enforce judgments 18
Loss of control over future iterations of this legislation 19
The Great Repeal Billa solution? 20
Which alternative jurisdictions gain from the current
uncertainty 21
Box 7: The New York Convention 22
Chapter 3: The Brussels IIa Regulation and the Maintenance
Regulation 23
Background 23
The Regulations 23
Box 8: The Brussels IIa Regulation (BIIa) 24
Box 9: The Maintenance Regulation 26
The Ministers view 26
Box 10: Case study 2: the Maintenance Regulation 27
Potential problems if UK leaves the BIIa and the MR without
alternative arrangements in place 27
Loss of certainty and predictability 27
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SUMMARY
This report considers the ramifications of Brexit for the EUs programme of civil
justice cooperation introduced by the three Regulationsthe Brussels I (recast),
the Brussels IIa and the Maintenance Regulationswhich collectively form the
so-called Brussels regime. Our inquiry was also shaped by the Governments
view that once we leave the EU there can be no jurisdiction for the Court of
Justice of the EU.
The evidence clearly illustrates that these three Regulations and the system
they engender play a significant role in the daily lives of UK and EU citizens,
families and businesses, who work, live, travel and do business within the EU.
Human relations can go wrong in many ways, including:
Divorce;
An employment dispute.
All three Regulations provide certainty, predictability and clarity about where
the resulting legal dispute should be pursued.
They also provide for the automatic recognition and enforcement of judicial
decisions and judgments throughout the EU. They regulate a pan-European
system of civil justice cooperation, which has been proved to work and reflects
the UKs legal culture. The myriad problems that they seek to address will not
cease when we leave the EU.
Our inquiry coincided with the publication of the Governments White Paper
on its exit from and future relationship with the EU. The Minister gave evidence
and told us that the Government had consulted on these matters, although there
is only a short reference to these Regulations in the White Paper. The Minister
also confirmed that their contents would feature in the Brexit negotiations.
However, beyond vague references to other arrangements the Committee was
unable to discern a clear Government plan as to how the continued post-Brexit
operation of these important Regulations will be secured. The Minister also
referred to the utility of the Great Repeal Bill, but it is not clear how this could
possibly deliver the reciprocity that is necessary for the functioning of these
Regulations.
We conclude that either the Government has decided not to make its position
public or, as yet, has not taken full account of the impact of Brexit on the areas
of EU law that these Regulations cover.
In our view, the loss post-Brexit of the Brussels IIa Regulation and the
Maintenance Regulation would be felt most profoundly both by those families
that rely on their provisions, for example for the enforcement of judicial decisions,
and by our family court system, which witnesses warned would struggle to cope
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4 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
with such radical change. Our evidence suggests that in the area of family law,
adequate alternative arrangements are not immediately apparent.
As for the areas of civil law covered by the Brussels I Regulation (recast),
membership of the so-called Lugano Convention does appear to offer a workable
but inferior solution; but we warn that Lugano operates under an earlier and less
effective iteration of the Brussels Regulation, and it is not clear if membership
of the Convention will be sought, offered or acceptable to those negotiating our
exit.
If the Government continues to apply its anti-CJEU stance too rigidly it will
severely limit its post-Brexit options for adequate alternative arrangements. It
is clear that regardless of the outcome of the Brexit negotiations, civil justice
cooperation of the type dealt with by these Regulations will remain a necessity.
We are in no doubt that without adequate alternative arrangements post-
Brexit there will be great uncertainty for UK businesses and citizens. Given
the importance of these Regulations, we call on the Government to publish a
coherent plan for addressing their post-Brexit application.
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Background
1. In February 2017, the Government published its White Paper on Brexit,
which stated its intention to bring an end to the Court of Justice of the
European Unions (CJEU) jurisdiction in the UK.1 In so doing, it confirmed
the remarks of the Prime Minister in her speech on 17 January 2017:
We will take back control of our laws and bring an end to the jurisdiction
of the European Court of Justice in Britain. Leaving the European
Union will mean that our laws will be made in Westminster, Edinburgh,
Cardiff and Belfast. And those laws will be interpreted by judges not in
Luxembourg but in courts across the country. Because we will not have
truly left the European Union if we are not in control of our own laws.2
2. The Governments chosen means for severing the UKs (legal) ties with the
EU is to introduce the Great Repeal Bill (GRB), which will provide legal
certainty over our exit from the EU.3 The White Paper seeks to reassure
businesses and individuals that the rules will not change significantly
overnight [and any] rights and obligations will not be subject to sudden
change. The Government promises that the GRB will ensure that all EU
laws which are directly applicable in the UK (such as Regulations) remain
part of domestic law on the day we leave the EU (emphasis added).4
1 HM Government, The United Kingdoms exit from and new partnership with the European Union, Cm 9417,
February 2017, pp 1315: https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf [accessed
27 January 2017]. The Government promised to (i) bring an end to the jurisdiction of the CJEU in the
UK, and (ii) that the UK will seek to agree a new approach to interpretation and dispute resolution
with the EU which will respect UK sovereignty, protect the role of our courts and maximise legal
certainty.
2 Theresa May MP, Speech on The Governments negotiation objectives for exiting the EU, 17 January
2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-
the-eu-pm-speech [accessed 9 February 2017]
3 HM Government, The United Kingdoms exit from and new partnership with the European Union, Cm 9417,
February 2017, p 9, para 1.1: https://www.gov.uk/government/uploads/system/uploads/attachment_
data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf
[accessed 27 January 2017]
4 HM Government, The United Kingdoms exit from and new partnership with the European Union, Cm
9417, February 2017 p 10: https://www.gov.uk/government/uploads/system/uploads/attachment_
data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf
[accessed 27 January 2017]
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6 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
5 Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters, OJ L 351, 20 December 2012, pp 132
6 Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing
Regulation 1347/2000, OJ L 338, 23 December 2003, pp 129
7 Regulation 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement
of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10 January 2009,
pp 1-79
8 Set out in Protocol 21 to the Treaty on European Union and the Treaty on the Functioning of the
European Union ,On the Position of the United Kingdom and Ireland in respect of the Area of
Freedom, Security and Justice OJ C 326, consolidated version of 26 October 2012, pp 00010390
9 Q6
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 7
Box 1: The EUs Area of Freedom, Security and Justice: civil justice
cooperation
5. Until such time as the UK withdraws from the EU, the interpretation and
application of the three Regulations falls to the CJEU. During this inquiry,
David Williams QC of 4 Pump Court described the role of the CJEU as one
of the big advantages of this EU legislation, because the Court brought
uniformity of interpretation to its application, without which different
concepts are applied differently in different countries.20
6. For the UK, after Brexit, the certainty of civil justice cooperation directly
overseen by the CJEU will cease.
10 Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para 2: http://www.
europarl.europa.eu/summits/tam_en.htm [accessed 27 January 2017]
11 The EU Institution made up of the Heads of State and/or Government of the Member States
12 Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para 28: http://www.
europarl.europa.eu/summits/tam_en.htm [accessed 27 January 2017]
13 Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para 34: http://www.
europarl.europa.eu/summits/tam_en.htm [accessed 27 January 2017]
14 See The Hague Council Conclusions: The Hague Programme: Strengthening Freedom, Security and
Justice in the European Union, OJ C 53/1, 3 March 2005, and the Stockholm Programme: An Open
and Secure Europe Serving and Protecting Citizens, OJ C 115/1, 4 May 2010.
15 Introduction to The Hague Council Conclusions, OJ C 53/1, 3 March 2005
16 The Hague Council Conclusions, OJ C 53/1, 3 March 2005, para 3.4.1
17 The Hague Council Conclusions, OJ C 53/1, 3 March 2005, para 3.4.2
18 The Stockholm Programme, OJ C 115/1, 4 May 2010, para 3.1.
19 The Stockholm Programme, OJ C 115/1, 4 May 2010, para 3.1.2
20 Q9
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8 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
25 Theresa May MP, Speech to the Conservative Party Conference on Brexit, 2 October 2016: https://
www.politicshome.com/news/uk/political-parties/conservative-party/news/79517/read-full-theresa-
mays-conservative [accessed 27 January 2017]
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10 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
Background
The development of the Brussels Regime
17. The Brussels I Regulation (recast) (and the two other Regulations that form
the focus of this report) can be traced back to the original 1957 Treaty of
Rome.26 In the Treaty, the founding six Member States of the European
Economic Community (EEC) promised to enter into negotiations with
each other with a view to securing for the benefit of their nationals
the simplification of formalities governing the reciprocal recognition and
enforcement of judgments of courts or tribunals and of arbitration awards
18. To that end, in September 1968 the (still) six EEC Member States agreed the
Brussels Convention on jurisdiction and enforcement of judgments in civil
and commercial matters (the Brussels Convention).27 It laid down detailed
rules dealing with the circumstances under which the courts in the Member
States might exercise jurisdiction and rules addressing specific civil and
commercial legal areas including contract, tort and maintenance.28 Following
the UKs accession to the EEC and the adoption of the acquis, the Brussels
Convention was given domestic effect in the UK by the Civil Jurisdiction
and Judgments Act 1982, which came into force in January 1987.29
19. Some years later, in March 2002, as part of the EUs efforts to create the
AFSJ, the (then) 15 EU Member States, with the exception of Denmark
(which subsequently negotiated separate arrangements30), agreed the
Brussels I Regulation, which replaced the Brussels Convention. Some of
the Brussels Is shortcomings are discussed in Box 6; Denmarks bespoke
arrangements are discussed in Box 13. Then, in 2012, following a long period
of consultation, further amendments were agreed as part of the negotiation
of the current version of the Regulation: the Brussels I Regulation (recast)
(see Boxes 2 and 3).31
British influence
20. We asked our witnesses what influence the United Kingdom had had on
the development of these Regulations. Former Court of Appeal Judge, the
Rt Hon Sir Richard Aikens, emphasised the British influence in shaping
the content and evolution of this area of EU legislation. He said there was
a great deal of input [from British lawyers and judges] into the moulding
of the BIR in particular, and the changes that were made in 2012. While
32 Q31
33 Q26
34 Q2
35 Q42
36 Regulation 1215/2012, 12 December 2012, on jurisdiction and the recognition and enforcement of
judgements in civil and commercial matters (recast), OJ L351/1, 20 December 2012, (Brussels 1
Regulation recast) Recital 26
37 Q27
38 Q14
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12 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
In order to facilitate civil justice cooperation within the AFSJ and to avoid
parallel legal proceedings (cases covering the same litigants and the same facts
brought in two different Member States), the BIR sets out rules in order to
determine in any civil based litigation the specific court with jurisdiction to hear
the case. The primary rule is that a defendant must be sued in the courts of the
State in which he or she is domiciled.39
Beyond the primary rule, the Regulation also contains rules of special
jurisdiction across a broad range of civil law disputes allowing, in certain
circumstances, individual defendants to be sued in certain other EU Member
States, to which the dispute has a link. For example, in contractual disputes
the defendant can be sued in the EU Member State in which the contract was
performed;40 if it is a consumer dispute, then the consumer can choose to bring
legal proceedings in the Member State where the consumer is domiciled, or
where the supplier of the product is domiciled.41 A case study is given in Box 4
The Regulation includes similar rules across the full range of civil litigation:
negligence (tort) related cases;42 insurance disputes;43 employment contracts;44
trust based disputes;45 and litigation relating to the salvage of cargo and/
or freight.46 In limited exceptions, regardless of where the parties live, the
Regulation stipulates where the case must be heard (defined in the Regulation
as exclusive jurisdiction).47 These exceptions are as follows:
(1) cases involving rights to immovable property, or the tenancy of
immovable property, must be heard in the jurisdiction where that
property is situated (private tenancies of under six months may be
heard in the EU country where both landlord and tenant live);48.
(2) disputes over the validity of a companys constitution, the nullity or
the dissolution of companies or other legal persons or associations
of natural or legal persons, or the validity of the decisions of their
organs must be heard in the EU country in which the company has
its seat according to private international law;49
(3) proceedings dealing with the validity of entries in public registers
must be heard in the courts of the Member State in which the register
is kept;50
39 40 41 42 43 44 45 46 47 48 49 50
Enforcement of judgments
31. Witnesses were equally positive about the BIRs rules on the enforcement
and recognition of judgments across the EU.
32. Professor Fentiman said: There is an advantage in the more or less automatic
enforcement of judgments across borders. If you do not have that, you have
to rely on the local rules being in force in particular states to enforce that
judgment.63 Richard Lord QC agreed that this aspect of the Regulation was
very important.64
33. David Greene, speaking on behalf of the Law Society of England and Wales,
said: On enforcement, the certainty that we have with [the BIR] is that
we can enforce the judgment that we secure in another jurisdiction.65 Dr
Helena Raulus, who also spoke on behalf of the Law Society of England and
Wales, praised the BIRs near-automatic procedures, whereby judgments
and decisions are recognised in other countries. She concluded that in this
regard all three Regulations provided cost-effectiveness.66
34. Professor Steve Peers, of the University of Essex, also focused on these
provisions: To tell someone suing that they could face another year or
two to get enforcement of their ruling and significant extra costs is a burden
and a potential deterrent to doing cross-border business.67
60 Written evidence from Prof Briggs QC (Hon) of Oxford University (CJC0002), para 39
61 Articles 3644 of the Brussels 1 Regulation (recast)
62 Article 45 of the Brussels 1 Regulation (recast)
63 Q5
64 Q14
65 Q22
66 Q22
67 Q6
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 15
A clothes manufacturer in Manchester orders and pays for cotton from a supplier
in Greece. When the order arrives, the manufacturer discovers that the quality
of the cotton is not of the standard agreed in the contract. The supplier refuses
to accept any liability and the manufacturer decides to seek redress through the
courts.
The first question to be determined is where the case should be heard. In
the absence of any prior agreement as to which countrys court should have
responsibility for determining a dispute, the jurisdiction rules of the BIR should
be used. These state that, in matters relating to a contract, the court with
jurisdiction will generally be in the place of performance of the obligation in
question. In the case of the sale of goods, that is the place where the goods were
delivered or should have been delivered. In this case, that is England. It is for
the court rules in England and Wales to determine which court can be used.
The second question is which law should apply to the case. The Rome I
Regulation (see Box 16) helps to provide the answer. If the contract includes a
choice of law provision, that provision would generally apply. However, if the
contract includes no such provision, the law governing the contract for a sale of
goods is generally that of the country where the seller is based.
As there was no agreement on jurisdiction or choice-of-law in the contract in
question, the clothes manufacturer can bring his case in a court in Manchester
and the dispute will be determined under Greek law.
The case itself proceeds in the English court with an expert witness advising on
Greek law. If the court finds for the clothes manufacturer, he can use the BIR
to have the judgment recognised for enforcement in Greece.
Source: HM Governments Review of the Balance of Competences between the United Kingdom and the European
Union: Civil Judicial Cooperation
The BIR allows parties with a particular legal relationship to agree a specific
jurisdiction for any dispute arising from that relationship (Article 25). These
so-called choice-of-court agreements will be respected if the agreement is:
(1) in writing or evidenced in writing;
(2) in a form which accords with practices which the parties have
established between themselves; or
(3) in international trade or commerce, in a form which accords with
a usage of which the parties are or ought to have been aware and
which in such trade or commerce is widely known to, and regularly
observed by, parties to contracts of the type involved in the particular
trade or commerce concerned.
The lis pendens rule in the Brussels I Regulation (see Box 6) could formerly be
used (or abused) to frustrate these agreements. The reforms enacted in the BIR
in 2012 brought the use of this tactic to an end.
The Hague Convention on choice-of-court agreements is discussed in Box 15.
41. Oliver Jones argued that the potential loss of the Regulation posed a clear
and present threat to the ability of [the Regulations] jurisdictional rules to
protect people, and he too feared for Londons pre-eminence as a legal
market.75 He called on the Government to make a clear announcement that
proceedings commenced under the current regime will apply until it
changes, and hoped that our partners in Europe could sign up to this
approach.76
42. Professor Fentiman expressed similar concerns about the current degree of
uncertainty over which rules will apply after the UK leaves the EU. Despite
seeing a viable alternative in the common law rules77 (see paragraph 103
below), he also believed that leaving the BIR posed an immediate threat to
the legal regulation of cross-border disputes and to the [UKs] market for
legal services. He argued that some decision should be made and some
clarity offered now as to what the position would be post-Brexit.78
43. Professor Peers also anticipated an impact on the UK legal market: There is
a risk that people in the European Union will think this is an opportunity
to divert or prevent business. He posed a question: What about every case
that is pending on Brexit day? Do they continue under the rules of the EU
regime? The same would apply to anything pending on the continent with
British involvement or potential relevance for enforcement.79
75 Q15
76 Q19
77 Use of the term common law in this report, refers to the case law of the UK courts dealing with
jurisdiction and the recognition and enforcement of judgments.
78 Q1
79 Q4
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18 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
80 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, OJ L 12, 16 January 2001, pp 00010023,
Article 27(1) of the original Brussels I Regulation
81 Q32
82 Q15
83 Q14
84 Q16
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 19
85 Q5
86 Q1
87 Written evidence from Prof Briggs (CJC0002), para 45
88 Written evidence from Prof Briggs (CJC0002), para 42
89 Q3
90 Q4
91 Q2
92 Q2
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20 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
53. The evidence provided to us suggests that the loss of certainty and
predictability resulting from the loss of the BIR and the reciprocal
rules it engenders will lead to an inevitable increase in cross-border
litigation for UK based citizens and businesses as they continue to
trade and interact with the remaining 27 EU Member States.
54. We are concerned by the Law Society of England and Wales evidence
that the current uncertainty surrounding Brexit is already having
an impact on the UKs market for legal services and commercial
litigation, and on the choices businesses are making as to whether
or not to select English contract law as the law governing their
commercial relationships.
55. The Government urgently needs to address this uncertainty and take
steps to mitigate it. We therefore urge the Government to consider
whether any interim measures could be adopted to address this
problem, while the new UK-EU relationship is being negotiated in
the two year period under Article 50.
106 Q16
107 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958):
http://www.newyorkconvention.org/english [accessed 27 January 2017]
108 Q43
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 23
Background
71. Brought forward by the Commission under the auspices of the AFSJ, and
in response to specific calls from the European Council, both the Brussels
IIa Regulation (BIIa) (see Box 8) and the Maintenance Regulation (MR)
(see Box 9) set out rules dealing with jurisdiction and the enforcement and
recognition of judgments in the area of family law. The UK Government
chose to participate in both Regulations. Professor Rebecca Bailey-Harris,
of 1 Hare Court, pointed out that these Regulations applied in a completely
different sphere from commercial litigation, because they dealt with
individuals.109
72. The BIIa addresses: divorce, legal separation, marriage annulment, and
parental responsibility including rights of custody, access, guardianship, and
placement in a foster family or institutional care. The MRs rules address
matters relating to maintenance obligations.
73. The BIIa is currently the subject of a renegotiation in the Council, and the
Government confirmed that it had decided to opt into this latest process on
27 October 2016.110 Former Court of Appeal judge, the Rt Hon Sir Mathew
Thorpe, welcomed the Governments very significant decision, because
there is no doubt that [the renegotiation] will result in a stronger and
modernised Regulation.111
74. The Minister told us that shortly after he joined the Government he had
had to decide whether to opt into the renegotiation of the BIIa. He believed
the UK should opt in, because it is a good system that helps with the
arrangements for children and with matrimonial matters.112
The Regulations
75. Mr Tim Scott QC, who gave evidence on behalf of the Bar Council, explained
the rationale of the two Regulations: There are 3 million citizens of other
member states living in the UK and 1.23 million UK citizens living in other
member states. A certain proportion of these citizens would experience
contentious family breakdown, and both Regulations provided certainty to
ordinary citizens, which was most valuable and vital.113
109 Q7
110 The EU Justice Sub-Committee retains the proposal under scrutiny.
111 Q30
112 Q41
113 Q22
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24 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
The BIIa sets out the system for establishing jurisdiction in relation to divorce,
legal separation and the annulment of marriage.114 It provides that an individual
may take a matrimonial action in the courts of the Member State where one or
both parties to the marriage are or were habitually resident or the Member State
of the parties common nationality or domicile; legal action may therefore be
possible in a number of Member States.115
Further, once proceedings have started in the first Member State, subsequent
courts in the other Member States must refuse jurisdiction (sometimes referred
to as the first-in-time-rule). This can give rise to the problem of parallel
proceedings, namely proceedings pending in different courts in two or more
Member States (abolition of this rule was a key amendment made by the BIR
in the context of civil and commercial litigation). There is a risk of litigants
using or abusing the system to frustrate proceedings issued in competing
jurisdictions, particularly as it can encourage parties to race to be the first to
issue proceedings in the most advantageous jurisdiction (see Box 6). Some also
view it as a deterrent to the use of alternative dispute resolution and other non-
court reconciliation schemes.
Finally, the Regulation provides a framework for the automatic recognition
of divorces concluded in other EU Member States, without the need for any
special procedure.116 Parties do not need to go to court to have a decision from
another Member States court recognised. However, an interested party may
ask a court not to recognise a decision and the court may do so if the decision is
clearly contrary to public policy; contradicts another decision; or if there were
procedural defects, for example, one party was not served with the relevant
papers and so did not attend court.117 The court is not entitled, however, to hear
an appeal against the original decision.
The Regulation also deals with matters of parental responsibility, including
rights of custody, access, guardianship, and placement in a foster family or
institutional care. It may also apply to measures involving the childs property,
if these are related to the protection of the child. It applies to all decisions made
by courts in matters of parental responsibility, not just those arising in relation
to matrimonial proceedings. Parents do not need to be married to each other
or be the childs biological parents. As well as court judgments, the Regulation
can apply to agreements between parents that are enforceable in the country
where they are made. It covers jurisdiction, recognition and enforcement, co-
operation between central authorities, and specific rules on child abduction and
access rights.
114 115 116 117
114 Council Regulation (EC) No 2201/2003 of 27 November 2003, concerning jurisdiction and the
recognition and enforcement of judgements in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No 1347/2000 OJ L 338, 23 December 2003, pp 0001
0029, (Brussels IIa Regulation) (Article 3)
115 Article 3 of the Brussels IIa Regulation
116 Article 21 of the Brussels IIa Regulation
117 Article 22 of the Brussels IIa Regulation
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The Regulation provides that the most appropriate forum for matters of
parental responsibility is the relevant court of the Member State where the child
is habitually resident.118 Habitual residence is not defined, but the Regulations
guidance notes state that a person cannot be habitually resident in more than one
country at the same time; in the case of children, this is usually straightforward
to ascertain.
Articles 40 and 41 provide that a child can maintain contact with all holders
of parental responsibility by ensuring that a judgment on access rights, or the
return of a child following abduction, are directly recognised and enforceable
in Member States. The Regulation creates a system of co-operation between
central authorities to facilitate communications and any agreements reached
between the parties. Further, judgments given in one Member State must be
recognised and enforced in any other, save where:
this would be manifestly contrary to the States public policy;
the child was not given an opportunity to be heard;
the judgment was given in the absence of a person not served with the
documents in a timely and appropriate way; or
a person claiming an infringement of their parental responsibility was not
given an opportunity to be heard.
The Regulation also deals with child abduction (the unlawful removal or
retention of a child). Where a child is abducted to another Member State, the
person having custody of the child may apply to the State to which the child has
been abducted for their return.119 The request can only be refused in limited
circumstances. In general there must be an order for the immediate return of
the child.120
Access rights are directly enforceable in other Member States. If the court issuing
the order also issues a certificate, it is not necessary to seek a declaration that the
rights are enforceable from a court in another Member State; the judgment will
be treated as a judgment of any other Member State.121
118 119 120 121
76. Sir Mathew Thorpe said that there is so much to be said in favour of the
BIIa, and he praised the EUs laudable ambition to achieve better justice for
European citizens where issues cross the border of Member States. In his
view, the Regulation had been broadly successful.122
77. David Williams QC focused on the Regulations contribution to child
welfare: The protection that [the Regulation] has given children by creating
a link between them and the country rather than between the adults and
the country certainly serves their best interests.123 Jacqueline Renton, of 4
Pump Court, argued that the BIIa had certainly streamlined jurisdiction
and the enforcement of orders in a children context, adding that it had
78. David Williams QC said that the BIIa had transformed the way family law
has operated over the last 11 years. The Regulation had overlaid all our
pre-existing domestic legislation, and had spread into every area of our
domestic law.129
79. Professor Rebecca Bailey-Harris agreed, describing both Regulations as
incredibly important, because they provided certainty and effectiveness
for individualschildren and their parents and adult partnersacross what
is a very global Europe.130
124 Q7
125 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition
and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJL7,
10 January 2009 (The Maintenance Regulation) (Article 3)
126 Article 4 of the Maintenance Regulation
127 Article 12 of the Maintenance Regulation
128 Article 24 of the Maintenance Regulation
129 Q7
130 Q7
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 27
An English woman and an Italian man marry in England and have a son. Their
relationship breaks down and they divorce in England. The father agrees with
the mother that he will pay maintenance for the child. After the divorce, the
father returns to Italy. Mother and child are living in England. He then refuses
to make the maintenance payments as previously agreed. The mother decides
that the only way to get the money owed is to go to courtbut which court to
go to and what is the most effective route to use?
Under the EU Maintenance Regulation 4/2009 the mother, who is the creditor,
can apply to the court in England and Wales for a maintenance order, then apply
to the England and Wales Central Authority (and, through that, the Italian
Central Authority) for the enforcement in Italy of the court order from England
and Wales for the payment of maintenance by the father, who is the debtor.
Alternatively, under the EU Maintenance Regulation the mother can
apply, through the two Central Authorities, to a court in Italy for an order
for maintenance. The Central Authorities will deal with any translation
requirements. Enforcing an Italian order might be more effective than seeking
enforcement of an English order.
Source: HM Governments Review of the Balance of Competences between the United Kingdom and the European
Union: Civil Judicial Cooperation
131 Q39
132 Q22
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28 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
85. David Williams QC feared the loss of the uniformity introduced by the
Regulations, which is underpinned by the CJEU. He said the remaining
Member States would carry on interpreting and applying [these Regulations]
with the assistance of the CJEU, while the UK would be applying the 1996
Hague Convention on parental responsibility and protection of children (see
Box 11). If this happened, he predicted a detrimental impact on children: it
would be like having a Windows operating system and an Apple operating
system: they just do not talk to each other.133
86. Professor Bailey-Harris also feared the loss of uniformity, which was a real
danger across the board. For example, the standard concept of habitual
residence, that applies to children, divorce and maintenance. There is a real
danger of slipping back into a lack of uniformity.134
The 1996 Hague Convention, which has a similar scope to the BIIa, sets
out uniform rules determining which countrys authorities are competent to
take measures of child protection. It seeks to avoid legal and administrative
conflicts, and builds a structure for effective international co-operation in
child protection matters between the different systems. The Convention places
primary responsibility on the authorities of the country where the child has his
or her habitual residence, but the Convention also allows any country where
the child is present to take necessary emergency or provisional measures of
protection.
The Convention includes rules determining which countrys laws are to be
applied, and it provides for the recognition and enforcement of measures
taken in one Contracting State in all other Contracting States. Among many
matters, the Convention addresses custody and contact disputes, the treatment
of unaccompanied minors, care of children across frontiers, and provisions
dealing with the exchange of information and collaboration between national
administrative child protection authorities in the different Contracting States.
All EU Member States have ratified the Convention, but within the EU the
135
BIIa specifically takes precedence.135
133 Q12
134 Q9
135 Article 61 of the Brussels IIa Regulation
136 Q22
137 Q32
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 29
88. Professor Rebecca Bailey-Harris focused on the potential loss of the MR:
Maintenance cases are not about high-wealth individuals; they are
often about children needing maintenance from a parent. If the parent
goes off somewhere else in Europe, it is extremely difficult reciprocally
to enforce maintenance without the proper arrangements.
She argued that this aspect of the MR really needs to be salvaged
in negotiations [because childrens] financial rights are actually very
important.138
An unmarried couple are living in Wales with their four-year old daughter. The
father has parental responsibility. The relationship breaks down and the couple
split up, but all the family remain in Wales, with the parents sharing residence
and contact with the child between them. One day, the mother fails to return
the child to the father when expected. It is discovered that the mother has fled
with the child to Poland with her new partner. Having failed to persuade the
childs mother to return the child, the father knows that he needs to go to court
to get his daughter back to Walesbut which court to go to and what is the most
effective route to use?
Under the 1980 Hague Convention on civil aspects of international child
abduction, the father could apply, through the England and Wales Central
Authority and the Polish Central Authority, to the Polish court to make an
order for the return of the child. The mother might tell the court in Poland that
there is a grave risk that return would expose the child to harm, because the
child would be affected by emotional abuse. The Polish court might then decide
to make a non-return order.
Brussels IIa mostly deals with jurisdiction, recognition and enforcement of
judgments. It also has provisions about child abduction that change the way the
1980 Hague Convention operates between EU Member States. Under the 1980
Hague Convention rules, a non-return order ends the case and the child stays
where he or she has been taken. But under Brussels IIa, the court in Poland
must send the papers to the court in Wales. The court in Wales, because the
child lived in Wales before the abduction, can consider the case, provided the
father asks the court to do so within the time limit. If the court decides the child
should be returned, the Welsh court order will mean the child will come back to
Wales despite the earlier decision of the Polish court.
Source: HM Governments Review of the Balance of Competences between the United Kingdom and the European
Union: Civil Judicial Cooperation
138 Q12
139 Q8
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30 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
140 Q7
141 Q23
142 Q11
143 Q11
144 Written evidence from Prof Briggs (CJC0002), para 9
145 Q11
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 31
rules applying. He warned us that dealing with the BIIa and the MR via the
GRB would introduce an element of confusion.146
96. When these concerns were put to the Minister, he argued that the GRB
would provide the solution, because it will bring into UK law all the laws of
the EU that we currently have in force for our country. He acknowledged
that there were some areas of concern, citing the example of matrimonial
law, as this is not covered by the Hague Conventions (see Box 8). But he
believed this would not be a problem, because the GRB would bring
[matrimonial law] home into our own law from the EU.147
97. It is clear that the Governments promised Great Repeal Bill will be
insufficient to ensure the continuing application of the Brussels II
and Maintenance Regulations in the UK post-Brexit: we are unaware
of any domestic legal mechanism that can replicate the reciprocal
effect of the rules in these two Regulations. We are concerned that,
when this point was put to him, the Minister did not acknowledge the
fact that the Great Repeal Bill would not provide for the reciprocal
nature of the rules contained in these Regulations.
98. We are not convinced that the Government has, as yet, a coherent
or workable plan to address the significant problems that will
arise in the UKs family law legal system post-Brexit, if alternative
arrangements are not put in place. It is therefore imperative that the
Government secures adequate alternative arrangements, whether as
part of a withdrawal agreement or under transitional arrangements.
146 Q11
147 Q41
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32 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
In the area of EU civil law, Denmark enjoys a complete opt out. However, in
2005 the Danish Government signed an international agreement with the then
European Community, to participate in both the original Brussels I Regulation
and, more recently, the Brussels I Regulation (recast).148 By virtue of this
agreement Denmark must accept the jurisdiction of the CJEU to interpret
this legislation, and Danish courts (which, importantly for the purposes of
the Treatys preliminary reference procedure, remain courts of a Member
State149) are obliged to refer questions on the legislations interpretation to the
CJEU (Article 6).
The Governments stated desire to bring an end to the CJEUs jurisdiction in
the UK post-Brexit appears to rule out the suggestion made by some witnesses
148 149 150
to this inquiry that the UK should seek to emulate the Danish model.150
148 Council Decision 2005/790/EC of 20 September 2005 on signing, on behalf of the Community, of the
Agreement between the European community and the Kingdom of Denmark on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters, OJ L 299/61, 16 November
2005
149 Article 267, Treaty on the Functioning of the European Union
150 See for example, the Rt Hon Sir Richard Aikens at Q35: I think the best model is actually the
Danish one. I can see no difficulties with it except one: what will be the position of the Court of Justice
of the European Union?; or Professor Rebecca Bailey-Harris at Q12: the Bar Councils position,
in both general civil law and family law, is to attempt to negotiate something like the Denmark
jurisdiction agreement, whereby Denmark has not opted straight in to the Regulations but has a
special arrangement.
151 Q27
152 Q36
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 33
of sensible and rational people and two years should be plenty of time in
which to do it.153
102. Professor Fentiman, in contrast to all our other witnesses, emphasised the
UKs strengths in any negotiation:
We would not be negotiating from a position of weakness we need
not be worried about the absence of the EU rules, because if indeed the
common-law rules were, post-Brexit, to occupy the space, we would have
a well-known and certain body of rules regarded throughout the world
as the world-leading rules in that area. There is no need for urgency.154
Family law
103. David Williams QC said that his first choice would be to maintain Brussels
II or the recast Regulationwhatever shape that eventually takesin force
as part of the negotiation, if we could, but he acknowledged that that
necessarily involves the Court of Justice of the European Union having the
interpretive role. He therefore hoped that a way could be found to maintain
these Regulations, while cutting out the CJEU because that is what is in
the interests of children.155
104. Tim Scott QC sought a similar goal. He said that the two Regulations were
mutually beneficial for all member states, and argued that for the stability
of families and the welfare of children across the EU it is important to
preserve this framework. He believed that the stability provided by the two
Regulations would make this solution easy to sell at an emotional/political
level to the British people.156
105. Sir Mathew Thorpe made a simple plea to the Government: Do not overlook
the importance of family law.157
153 Q34
154 Q1
155 Q12
156 Q27
157 Q37
158 Q1
159 Q1
160 Q30
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34 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
108. Richard Lord QC felt that falling back on the common law rules would not
be an absolute disaster, but would be a retrograde step and [would] cause
difficulty. He concluded that it was not a realistic or practical option;161 it
would be a recipe for confusion, expense and uncertainty.162
109. Oliver Jones said he could not disagree more with Professor Fentiman.163
He rejected the suggestion that we could or should be relaxed about simply
leaving the current regime and putting nothing else in place and allowing
the common law to return to a judicial space from which it has been on
hiatus for the past 30 years. This does not tally with the views of anyone I
have spoken to in the London legal market.164
110. David Greene, on behalf of the Law Society, agreed. The common law
might provide answers but the world has moved on a bit in 40 years.
We have moved to a much more international and more European-focused
United Kingdom.165 In his view, the development of common law is a very
expensive process We would be going back all those years and trying
to develop the common law quite quickly to meet modern conditions. He
concluded: That is the problem with going back: it has uncertainty.166
111. Hugh Mercer QC, on behalf of the Bar Council, argued that the UK courts
would suffer if we go with the common law.167 The BIRs rules operated
on the basis of saying, In circumstances A, B and C, you go to Italy. In
circumstances D, E and F, you go to England. In contrast, the common law
system will always decide [on a] discretionary basis which is the appropriate
court. That means that a defendant who wants to string things out always
has the possibility of an argument; he cannot be struck out on that basis and
he can always argue the point.168
112. He acknowledged that the common law might help deal with judgments from
other jurisdictions, but it would not help with the export of judgments: what
happens to English judgments when they arrive in Italy, Spain, Portugal
or France.169 Echoing the Law Societys views on costs, he warned that
oligarchs can always afford the common law, but for the little guy
certainty and uniformity were provided by the BIR.170
113. The Minister accepted that if the UK were to fall back on to the common law,
we would not have the reciprocity and the mutual agreement on which the
BIR was built. This solution was certainly not [the Governments] choice.171
114. The balance of the evidence was overwhelmingly against returning to
the common law rules, which have not been applied in the European
context for over 30 years, as a means of addressing the loss of the
Brussels I Regulation (recast). We note that a return to the common
law would also not be the Governments choice.
161 Q14
162 Q15
163 Q15
164 Q15
165 Q22
166 Q23
167 Q24
168 Q23
169 Q23
170 Q22
171 Q39
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 35
115. A return to the common law rules would, according to most witnesses,
be a recipe for confusion, expense and uncertainty. In our view,
therefore, the common law is not a viable alternative to an agreement
between the EU and the UK on the post-Brexit application of the
Brussels I Regulation (recast).
116. Nonetheless, in contrast to key aspects of the two Regulations dealing
with family law, Professor Fentiman was of the opinion that in the
event that the Government is unable to secure a post-Brexit agreement
on the operation of the Brussels I Regulation (recast), a return to the
common law rules would at least provide a minimum safety net.
The scope of the Brussels regime outside the EU has been extended by the
Lugano Convention, concluded on 16 September 1988 between the (then) 12
Member States of the European Community and the (then) six Member States
of the European Free Trade Association (EFTA).
Its effect is to create common rules regarding jurisdiction and the enforcement
and recognition of judgments across a single legal space consisting of the
EU Member States (including Denmark) and, since 2007, three of the four
EFTA states (Iceland, Norway and Switzerland: Liechtenstein, which joined
the European Free Trade Association in 1991, is not party to the Lugano
Convention). The Lugano Convention was given effect in the United Kingdom
in 1991.
172 Q3
173 Q3
174 Q3
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36 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
The Convention covers the same subject matter as the original Brussels I
Regulation, which was replaced within the EU in 2012 by the BIR. The
Convention, therefore, does not cover the most up-to-date version of the
legislation, and retains the inherent shortcomings of the Brussels I Regulation.
For example, the problems caused by the rigid application of the lis pendens
rules (highlighted in Box 6) remain an issue, and the enforcement in the UK
of judgments delivered by the courts of Iceland, Norway and Switzerland are
subject to an additional registration requirement (Article 38(2)). In this way,
the mechanisms for the recognition and enforcement of judgments are not as
straightforward as those under BIR. Its rules do, however, cover maintenance-
related claims (Article 5(2)), so it could be a replacement for the MR.
Judicial oversight
Protocol 2 of the Lugano Convention deals with the uniform interpretation of
the Convention. Under the Protocol, the national courts of Iceland, Norway
and Switzerland are not subject to the CJEUs jurisdiction. Instead, any
court applying and interpreting this Convention shall pay due account to
any relevant decision rendered by the courts of the States bound by this
Convention and by the Court of Justice of the European Union.
119. Sir Richard Aikens argued that if the UK could not remain in the current
system, the answer is to do what is being done with Lugano. He explained
that, in effect, there were two systems under the Convention: If an EU state
is involved it has to go to the CJEU. For the non-EU states, they do not
have to send things to the CJEU [they are] just bound to have regard to the
CJEUs decisions on the interpretation of the Convention.175
120. Professor Jonathan Harris QC also suggested that UK participation in the
Lugano Convention seemed to be a more plausible solution [and a] more
politically acceptable option. This was principally because Norway, Iceland
and Switzerland are not directly subject to the European Court of Justices
jurisdiction. Their national courts are bound to have regard to [the CJEUs]
case law. But he added a caveat, that the Lugano Convention was not quite
as good as [the BIR]. It does not have quite as streamlined a procedure for
enforcement. The protection against proceedings brought in breach of an
English exclusive jurisdiction clause in another member state is not as good.
Nevertheless, he concluded, it is an awful lot better than nothing at all.176
121. Richard Lord QC accepted that the easiest solution might well be to go
back to Lugano with this idea of just paying due regard to the CJEU. But
he also warned that you would lose some of the additional advantages that
you get in Brussels I recast as opposed to Lugano.177
122. The Law Society expressed similar views. David Greene said: We are
looking for certainty we would regard Lugano as the second choice
compared with Brussels, but it might be Lugano. His colleague, Dr Helena
Raulus, told us: Of course, as an alternative, it is possible to enter Lugano,
but then some of the consumer issues start to fall out. She therefore added
that the Law Society would also encourage amending Lugano.178
175 Q35
176 Q17
177 Q18
178 Q25
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 37
These two Regulations deal with the issue of applicable law, namely in any
given legal dispute with an external element which law ought to be applied
(for example, the case scenario in Box 4). The Rome I Regulation184 applies to
contractual relations, while Rome II deals with non-contractual obligations.185
Because neither of these Regulations relies on reciprocal arrangements, they
could be implemented in the UK via the Great Repeal Bill, without the problems
184 185
described in respect of the three Brussels Regulations.
179 Q1
180 Written evidence from Prof Briggs (CJC0002), para 47
181 Hague Convention on Choice of Court Agreements (2005): https://assets.hcch.net/docs/510bc238-
731847ed-9ed5-e0972510d98b.pdf
182 Q16
183 Q16
184 Regulation No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I)
OJ L 177/6, 4 July 2008
185 Regulation No 864/2007 of the European Parliament and the Council of 11 July 2007 on the law
applicable to non-contractual obligations (Rome II) OJ L 199/40, 31 July 2007
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38 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
186 Q33
187 Q23
188 Q7
189 Q12
190 Q7
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 39
Rentons comments about divorce law, saying that there is just no safety
net. She therefore suggested that there might be an argument for enacting
the divorce parts of [the BIIa] into domestic legislation and trying to achieve
reciprocity by negotiation with the remaining EU Member States.191
191 Q11
192 Q9
193 Q38
194 Q40
195 Q42
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40 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
141. Second, the Minister frequently repeated the Governments view that post-
Brexit the CJEU would not [be] overseeing anything that we do.196 When
pressed on the detail of any post-Brexit arrangements, and the issue of
judicial oversight, he said that other arrangements would have to be made.
He acknowledged that there were existing tools that one could look at, such
as Lugano, but we are not at that point. He also suggested other models,
such as the EUs trade agreements with Canada and South Korea.197
142. The Minister held fast to the Governments policy that the Court of
Justice of the European Union will have no jurisdiction in the UK
post-Brexit. We remain concerned, however, that if the Government
adheres rigidly to this policy it will severely constrain its choice of
adequate alternative arrangements.
143. Clearly, if the Government wishes to maintain these Regulations
post-Brexit, it will have to negotiate alternative arrangements with
the remaining 27 Member States to provide appropriate judicial
oversight. But the Minister was unable to offer us any clear detail on
the Governments plans. When pressed on alternatives, he mentioned
the Lugano Convention and other arrangements. We were left
unable to discern a clear policy.
144. The other examples the Minister drew on, Free Trade Agreements
with Canada and South Korea, do not deal with the intricate reciprocal
regime encompassed by these three Regulations. We do not see them
as offering a viable alternative.
145. We believe that the Government has not taken account of the full
implications of the impact of Brexit on the areas of EU law covered
by the three civil justice Regulations dealt with in this report. In the
area of family law, we are very concerned that leaving the EU without
an alternative system in place will have a profound and damaging
impact on the UKs family justice system and those individuals
seeking redress within it.
146. In the civil and commercial field there is the unsatisfactory safety
net of the common law. But, at this time, it is unclear whether
membership of the Lugano Convention, which is in itself imperfect,
will be sought, offered or available.
147. We call on the Government to publish a coherent plan for addressing
the post-Brexit application of these three Regulations, and to do so as
a matter of urgency. Without alternative adequate replacements, we
are in no doubt that there will be great uncertainty affecting many
UK and EU citizens.
196 Q44
197 Q44
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 41
10. The evidence suggests that jurisdictions in other EU Member States, and
arbitrators in the UK, stand to gain from the current uncertainty over the
post-Brexit application of the BIR, as may other areas of dispute resolution.
(Paragraph 69)
11. With regard to arbitration, we acknowledge that the evidence points to a
gain for London. But, we are also conscious of the evidence we heard on the
importance of the principles of justice, in particular openness and fairness,
underpinned by the publication of judgments and authorities, which are
fundamental to open law. It is our view that greater recourse to arbitration
does not offer a viable solution to the potential loss of the BIR. (Paragraph70)
28. Other witnesses suggested the UK rely on the 1996 Hague Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation
in respect of Parental Responsibility and Measures for the Protection of
Children. But the evidence suggests that this Convention offers substantially
less clarity and protection for those individual engaged in family law based
litigation. (Paragraph 138)
29. The Minister held fast to the Governments policy that the Court of Justice
of the European Union will have no jurisdiction in the UK post-Brexit.
We remain concerned, however, that if the Government adheres rigidly
to this policy it will severely constrain its choice of adequate alternative
arrangements. (Paragraph 142)
30. Clearly, if the Government wishes to maintain these Regulations post-
Brexit, it will have to negotiate alternative arrangements with the remaining
27 Member States to provide appropriate judicial oversight. But the Minister
was unable to offer us any clear detail on the Governments plans. When
pressed on alternatives, he mentioned the Lugano Convention and other
arrangements. We were left unable to discern a clear policy. (Paragraph143)
31. The other examples the Minister drew on, Free Trade Agreements with
Canada and South Korea, do not deal with the intricate reciprocal regime
encompassed by these three Regulations. We do not see them as offering a
viable alternative. (Paragraph 144)
32. We believe that the Government has not taken account of the full implications
of the impact of Brexit on the areas of EU law covered by the three civil
justice Regulations dealt with in this report. In the area of family law, we are
very concerned that leaving the EU without an alternative system in place
will have a profound and damaging impact on the UKs family justice system
and those individuals seeking redress within it. (Paragraph 145)
33. In the civil and commercial field there is the unsatisfactory safety net of
the common law. But, at this time, it is unclear whether membership of the
Lugano Convention, which is in itself imperfect, will be sought, offered or
available. (Paragraph 146)
34. We call on the Government to publish a coherent plan for addressing the
post-Brexit application of these three Regulations, and to do so as a matter
of urgency. Without alternative adequate replacements, we are in no doubt
that there will be great uncertainty affecting many UK and EU citizens.
(Paragraph 147)
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 45
Members
Lord Cromwell
Baroness Hughes of Stretford
Lord Judd
Baroness Kennedy of The Shaws (Chairman)
Earl of Kinnoull
Baroness Ludford
Baroness Neuberger
Baroness Newlove
Lord Oates
Lord Richard
Lord Polak
Baroness Shackleton of Belgravia
Declarations of Interest
Lord Cromwell
No relevant interests declared
Baroness Hughes of Stretford
No relevant interests declared
Lord Judd
Family members married to EU nationals and some live in the EU.
Otherwise no relevant interests to declare.
Baroness Kennedy of The Shaws (Chairman)
No relevant interests declared
Earl of Kinnoull
Non-practising barrister
Baroness Ludford
No relevant interests declared
Baroness Neuberger
No relevant interests declared
Baroness Newlove
No relevant interests declared
Lord Oates
No relevant interests declared
Lord Polak
No relevant interests declared
Lord Richard
No relevant interests declared
Baroness Shackleton of Belgravia
Solicitor in partnership practising in family law (with large international
practice)
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46 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?
The following Members of the European Union Select Committee attended the
meeting at which the report was approved:
LordBoswell of Aynho (Chairman)
Baroness Brown of Cambridge
Baroness Browning
BaronessFaulkner of Margravine
LordGreen of Hurstpierpoint
LordJay of Ewelme
BaronessKennedy of The Shaws
Earl of Kinnoull
LordLiddle
BaronessPrashar
Lord Selkirk of Douglas
BaronessSuttie
LordTrees
LordWhitty
BaronessWilcox
Lord Woolmer of Leeds
A full list of Members interests can be found in the Register of Lords Interests
http://www.parliament.uk /mps-lords-and-offices/standards-and-interests/
register-of-lords-interests/
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