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Brexit: Justice For Families, Individuals and Businesses?: 17th Report of Session 2016-17

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HOUSE OF LORDS

European Union Committee

17th Report of Session 201617

Brexit: justice for


families, individuals
and businesses?
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Ordered to be printed 14 March 2017 and published 20 March 2017

Published by the Authority of the House of Lords

HL Paper 134
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The European Union Committee


The European Union Committee is appointed each session to scrutinise documents deposited
in the House by a Minister, and other matters relating to the European Union.
In practice this means that the Select Committee, along with its Sub-Committees, scrutinises
the UK Governments policies and actions in respect of the EU; considers and seeks to
influence the development of policies and draft laws proposed by the EU institutions; and
more generally represents the House of Lords in its dealings with the EU institutions and other
Member States.
The six Sub-Committees are as follows:
Energy and Environment Sub-Committee
External Affairs Sub-Committee
Financial Affairs Sub-Committee
Home Affairs Sub-Committee
Internal Market Sub-Committee
Justice Sub-Committee

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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Box 11: 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 28
Enforcement of court decisions 28
Loss of provisions on child abduction 29
Box 12: Case study 3: the Brussels IIa Regulation 29
Loss of domestic application 30
Impact on family court system 30
The Great Repeal Billa solution? 30
Chapter 4: Options for the future 32
Box 13: No CJEU/no Danish model 32
Advice for the Government 32
Civil and commercial law 32
Family law 33
Non-CJEU alternatives for the BIR 33
Do nothing: the common law will suffice 33
Seek UK Membership of Lugano Convention plus Hague
Convention on choice-of-court agreements 35
Box 14: The Lugano Convention 36
Box 15: 2005 Hague Convention on choice-of-court agreements 37
Box 16: Rome I and Rome II 38
Non-CJEU alternatives for the BIIa and the MR 38
Do nothing: return to the common law II 38
Fall back on alternative international arrangements: the
1996 Hague Convention 38
The Lugano Convention as a replacement for the Maintenance
Regulation 39
The Ministers view 40
Summary of conclusions and recommendations 42
Appendix 1: List of Members and declarations of interest 46
Appendix 2: List of witnesses 48

Evidence is published online at http://www.parliament.uk/brexit-civil-


justice-cooperation/ and available for inspection at the Parliamentary
Archives (020 7129 3074).

Q in footnotes refers to a question in oral evidence.


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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 3

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;

Disputed custody of children;

A medical negligence claim;

Litigation arising out of a car accident abroad;

Failure to perform a contract; or

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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Brexit: justice for families,


individuals and businesses?
Chapter 1: INTRODUCTION

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?

Three Regulations and the CJEU


3. At the time of the referendum on the UKs Membership of the EU in June
2016, the EUs institutions had agreed, within the Area of Freedom, Security
and Justice (AFSJ) (see Box 1), three Regulations designed to facilitate
judicial cooperation in civil matters:
(1) Regulation 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (recast).5
The so-called Brussels I Regulation recast (BIR) (see Boxes 2 and 3).
(2) Regulation 2201/2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of
parental responsibility.6 The so-called Brussels IIa Regulation (BIIa)
(see Box 8).
(3) Regulation 4/2009 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to
maintenance.7 The so-called Maintenance Regulation (MR) (see Box
9).
4. All three Regulations were subject to the UKs opt-in arrangements,8 under
which the Government decides, on a case-by-case basis, whether it is in
the national interest to participate. Significantly, on all three occasions the
Government decided to participate because, as Professor Steve Peers of
Essex University told us, the Government felt there was a problem that
needed addressing.9 Indeed, since the referendum result, the Government
has decided to opt into the current renegotiation of the BIIa.

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

In Tampere in October 1999, the EU Member States pledged to develop an Area


of Freedom, Security and Justice (AFSJ), within which the economic freedoms
enjoyed by EU citizens, including the right to move freely within the Union,
could be exercised in conditions of security and justice accessible to all.10
The European Council11 also undertook to create a Genuine European Area
of Justice, within which individuals and businesses should not be discouraged
from exercising their rights by the incompatibility or complexity of legal
systems in the Member States.12 In the area of civil law, the leaders of the national
Governments called on the Commission to bring forward legislation designed
to remove the measures which are still required to enable the recognition and
enforcement of a decision or judgment in another Member State.13
Subsequent European Councils renewed the Member States commitment to the
Genuine Area of Justice and sought to widen and build upon these aims.14 For
example in 2005 in The Hague, the European Council promised to eliminate
legal and judicial obstacles in litigation in civil and family matters with cross-
border implications.15 The Member States attached great importance to the
continued development of judicial cooperation in civil matters16 and invited
the Commission to propose legislation in the field of family law addressing the
recognition and enforcement of decisions on maintenance.17
Further, in Stockholm in 2010, the European Council noted with satisfaction18
the work already undertaken to create the AFSJ, but suggested extending the
AFSJ legislative programme to fields that are not yet covered but are essential
to everyday life, for example matrimonial property rights and the property
consequences of the separation of couples.19
10 11 12 13 14 15 16 17 18 19

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?

The purpose of this report


7. Given their highly specialist and technical nature, it is not surprising that
these three Regulations, and the system of civil justice cooperation that they
maintain, received little public attention during the referendum campaign
or subsequently. However, they each play an important role in facilitating
the daily operation of the European legal system, while also protecting the
rights of EU citizens and the ability of businesses to engage with the Single
Market.
8. In the area of family law, the BIIa and the MR provide certainty and protection
to children and families in the often fractious and difficult environment of
family disputes. Given that many people have taken advantage of the EUs
rules facilitating the free movement of people, such disputes can be made
additionally complicated by a cross-border element (see the case studies in
Boxes 10 and 12). These two Regulations seek to lessen the impact of this
aggravating factor.
9. In the civil field, the BIR facilitates the affairs of all those engaged in the
myriad cross-border links enabled by the EUs rules, from the tourist hit by a
car in Warsaw, the consumer seeking redress for a defective product in Lisbon,
to the employee seeking equal pay in London, and the tenant enforcing their
rights in Nicosia. For businesses operating within the Single Market, from
large multinational corporations to Small and Medium Enterprises, the
BIR offers all these people the reassurance that when problems arise legal
remedies are readily available and easily enforceable across borders (see the
case study in Box 4).
10. Beyond their everyday human impact, these Regulations also play an
important role in the UKs market for legal services; legal advice; and,
commercial litigation. According to the Government21 and the Law Society
of England and Wales, legal services in the UK employ around 370,000
people and, in 2015, contributed 25.7 billion to the UKs economy.22 A
recent study by the University of Luxembourg found that between 2007 and
2012, 11% of all international commercial contracts chose English contract
law as the applicable law for the settlement of disputes.
11. Further, all three EU Regulations have, in part through the introduction of
predictable rules on jurisdiction and the enforcement of judgments, enabled
UK law firms to establish themselves as the second largest market for legal
services globally. This is particularly so with regard to the BIR, which
specifically protects the validity of choice-of-court agreements (see Box 5).23
12. Inevitably Brexit, and the Governments stance on the jurisdiction of the
CJEU, cast serious doubt on the future application of these three Regulations
to the UK, and on the reciprocal rules they preserve between Member
States. The Minister, the Rt Hon Sir Oliver Heald QC, stated that these
important issues were very high in the minds of Government.24 But,
21 Q42
22 The Law Society, The Economic Value of the Legal Services Sector report, March 2016: http://www.
lawsociety.org.uk/support-services/research-trends/a-25-billion-legal-sector-supports-a-healthy-
economy/ [accessed 27 January 2017]
23 Professor Gilles Cuniberti of the University of Luxembourg, The International Market for
Contracts: The Most Attractive Contract Laws, Northwest Journal of International Law and
Business , vol 34, issue 3 (2014): http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.
cgi?article=1767&context=njilb [accessed 27 January 2017]
24 Q38
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 9

aside from a brief reference to potential cooperation on civil justice, these


three Regulations and the problems they seek to resolve did not feature in
the Governments White Paper.
13. The purpose of this report is therefore to illustrate the central importance of
these Regulations to the UKs legal system and to the citizens and businesses
relying on it. We look at the problems that would arise if the UK left the EU
without securing agreement on their application to the UK post-Brexit. We
also address the likely impact of the Governments promised Great Repeal
Bill, and consider the potential alternatives for this area of civil justice
cooperation once the UK leaves the EU. In undertaking this inquiry we
have kept in mind the Prime Ministers statement to the Conservative party
conference in September: Lets state one thing loud and clear we are not
leaving [the EU] only to return to the jurisdiction of the European Court of
Justice. Thats not going to happen.25 The implications of this position for
civil justice are the subject of this report.

The EU Committees work


14. Following the referendum on 23 June 2016, the European Union Committee
and its six sub-committees launched a coordinated series of inquiries,
addressing the most important cross-cutting issues that will arise in the
course of negotiations on Brexit. These inquiries, though short, are an
opportunity to explore and inform wider debate on the major opportunities
and risks that Brexit presents to the United Kingdom.
15. To that end, between December 2016 and January 2017 we took oral evidence
from the witnesses listed in Appendix 2. Professor Adrian Briggs of Oxford
University and the Law Society of England and Wales submitted written
evidence. We are very grateful to all of them for their participation in this
inquiry.
16. We make this report to the House for debate.

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?

Chapter 2: THE BRUSSELS I REGULATION (RECAST)

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

26 The Treaty of Rome (1957), Article 220


27 The 1968 Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial
matters, OJ L 299, 31 December 1972
28 The Conventions stated aims were: (i) to avoid parallel legal proceedings within the six Member
States; (ii) to simplify the recognition and enforcement of judgments; and, (iii) to strengthen the legal
protection afforded to the citizens of the Member States. The Brussels Convention was amended and
extended on subsequent occasions following the accession of the United Kingdom and other states to
the European Community.
29 The Civil Jurisdiction and Judgments Act 1982
30 Council Decision 2005/790/EC of 20 September 2005, on the 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, 16
November 2005, pp 6170
31 This Committee submitted its own report to the Commissions consultation: European Union
Committee, Green Paper on the Brussels I Regulation (21st Report, Session 200809, HL Paper 148)
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 11

ultimately it is a European Regulation and it emanates from Brussels the


final result owed a great deal to British input.32
21. The Bar Council agreed with Sir Richard. Hugh Mercer QC told us that
the UK Law Societies joint Brussels office, the Bar Councils Brussels
Office and British parliamentarians and MEPs have been tremendously
influential. He added that we have a very strong legal system, and we
have been very influential in Brussels.33 Professor Richard Fentiman,
of Cambridge University, also recognised the British influence on these
Regulations: The United Kingdom has had a very considerable influence
in shaping their form.34
22. The Minister agreed: We are amazing in the way we affect international
affairs we have been involved in improving arrangements around the
world and in the EU.35
23. We acknowledge and welcome the UKs influence over the content of
these three EU Regulations which are crucial to judicial cooperation
in civil matters and reflect the UKs influence and British legal
culture. We urge the Government to keep as close to these rules as
possible when negotiating their post-Brexit application.

What does the BIR do?


24. The BIR is built on the principle of mutual trust between Member States
legal systems.36 It typically applies when a legal dispute has a cross-border or
external element, and it sets out reciprocal rules on:
(1) Jurisdiction, namely which court in which Member State should hear a
particular civil/commercial dispute; and
(2) Enforcement and recognition of judgments.
As Hugh Mercer QC explained: Wherever you get people, businesses,
products or goods crossing borders [you need] rules that sort out cross-
border situations.37
25. Professor Jonathan Harris QC, of Serle Court, also emphasised the practical
benefits of the BIR: [The] only reason this exists is because it was considered
to be complementary to free tradeyou would not have a barrier to going
out to provide your goods or services across Europe because you knew you
would be able to recover debts.38

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?

Box 2: The Brussels I Regulation (recast): jurisdictional rules

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

39 Article 4 of the Brussels 1 Regulation (recast)


40 Article 7(1) of the Brussels 1 Regulation (recast)
41 Articles 1719 of the Brussels 1 Regulation (recast)
42 Article 7(2) of the Brussels 1 Regulation (recast); in the jurisdiction where the negligent act occurred.
43 Articles 1016 of the Brussels 1 Regulation (recast)
44 Articles 2023 of the Brussels 1 Regulation (recast)
45 Article 7(6) of the Brussels 1 Regulation (recast); in the Member State where the trust is domiciled.
46 Article 7(7) of the Brussels 1 Regulation (recast)
47 Article 24 of the Brussels 1 Regulation (recast)
48 Article 24(1) of the Brussels 1 Regulation (recast)
49 Article 24(2) of the Brussels 1 Regulation (recast)
50 Article 25(3) of the Brussels 1 Regulation (recast)
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 13

(4) proceedings concerning the registration or validity of patents,


trademarks, designs, or other similar rights required to be deposited
or registered, must be heard in the courts of the Member State in
which the deposit or registration has been applied for or has taken
place;51 and,
(5) proceedings concerning the enforcement of judgments must be heard
by the courts of the Member State in which the judgment has been
given or is to be enforced.52
In order to avoid parallel legal proceedings (litigation in more than one Member
State), courts not enjoying jurisdiction (as defined above) are required to stay
51 52 53
proceedings and decline jurisdiction.53

The importance of the BIR


Jurisdiction
26. All our witnesses agreed that the BIRs jurisdictional rules had established
legal certainty and predictability. Sir Richard Aikens said the BIR maintained
a set of rules for deciding which courts in which country of the member
states of the European Union will resolve civil and commercial disputes. In
his view, the Regulation is very important [because] it is not just concerned
with commercial cross-border disputes; it deals with all civil and commercial
matters.54
27. Hugh Mercer QC said that the uniformity and certainty given to general
civil litigation by the BIR was very important.55 He stated that the
Regulation gives certainty to consumers, to employees, and to victims of car
accidents if you are knocked down in the street in Nicosia, you can bring
your claim against the Cypriot insurer in English courts. He concluded that
the Regulation provided certainty for the little guy.56
28. Oliver Jones, of Brick Court Chambers, also emphasised the protection that
the Regulation conferred on individuals: One of the fundamental rationales
of the current EU system is that it is there to protect people. The BIR
protects them from parallel proceedings57 being launched against them
in different member states [and] ensures that people who are sometimes in
a vulnerable position can be sued in the courts of their home member
state. The Regulation provided a clear, codified set of rules that people can
understand. In his view, it had been proven to work.58
29. Oliver Jones also noted that, while we think very much of big corporates,
large commercial claims, the Regulation applies equally to very small
claims, individual claims and small company claims which could be for
a very small amount of money. He warned that anything that reduced the
uniformity introduced by the Regulation would impact on those people the
most.59

51 Article 24(4) of the Brussels 1 Regulation (recast)


52 Article 24(5) of the Brussels 1 Regulation (recast)
53 Article 2 of the Brussels 1 Regulation (recast)
54 Q30
55 Q22
56 Q22
57 For an explanation see Box 6.
58 Q14
59 Q14
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30. Professor Adrian Briggs QC (Hon), of Oxford University, emphasised the


importance of the Regulations jurisdictional rules. The BIR regulates
jurisdiction far more often and far more significantly than it does enforcement
of judgments. In his view, the BIRs importance lay in the protection it
conferred on defendants in the other 27 EU Member States: it protects
them from the normal jurisdictional rule of the common law: that any person
who is present within the territorial jurisdiction of the English court, or any
company which carries on business at a place within the jurisdiction of the
court, will be liable to be sued in England.60

Enforcement of judgments
31. Witnesses were equally positive about the BIRs rules on the enforcement
and recognition of judgments across the EU.

Box 3: The Brussels I Regulation (recast): enforcement and recognition


of judgments

The BIR includes provisions designed to facilitate the enforcement and


recognition of judgments. In the areas of civil litigation covered by the Regulation,
court judgments delivered by one Member State court must be recognised and
enforced in another Member State without additional processes or procedures.61
61 62
There are very limited grounds for refusal.62

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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Box 4: Case study 1: the Brussels I Regulation (recast)

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 Ministers view of the BIR


35. The Minister told us that since the result of the referendum the Government
had consulted on all three Regulations, with a range of interested parties
including judges, lawyers, academics and consumer groups. With regard to
the BIR, the message that the Government had received from this process
was that post-Brexit an effective system of cross-border judicial cooperation
with common rules is essential to embed certainty and predictability for
businesses particularly for those with a commercial aspect.68
36. The Minister recognised that the BIR was important, and explained that
in the Governments view, the content is key, especially with regard to
mutuality and reciprocity. He understood that the great advantage of the
BIR was that we know that other countries will follow the same rules as we
do.69 He suggested that it was too early to say what extent [the BIR] will
feature in any agreement between the UK and the EU, but acknowledged
that these are important principles that will form part of the negotiations.70
37. The predictability and certainty of the BIRs reciprocal rules are
important to UK citizens who travel and do business within the EU.
We endorse the outcome of the Governments consultations, that an
68 Q38
69 Q39
70 Q38
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16 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?

effective system of cross-border judicial cooperation with common


rules is essential post-Brexit.
38. We also note the Ministers confirmation, in evidence to us, that the
important principles contained in the Brussels I Regulation (recast)
will form part of the forthcoming negotiations with the remaining
EU Member States.

Potential problems if the UK leaves the BIR without alternative


arrangements in place
Loss of certainty
39. Richard Lord QC was concerned that after Brexit, without the BIR or
alternatives in place, there would be a loss of certainty: The point is that
businesses, and indeed individuals, like certainty and predictability. He
said that at present:
If an English jurisdiction clause is inserted, that will be recognised
It might not be recognised if we lose the Regulation. Similarly, even
if there is no jurisdiction clause, currently with this reciprocal system
you are not likely to have two courts both saying, I have jurisdiction.
If we lose that, you might have all sorts of problems with courts losing
jurisdiction.71
He concluded that, post-Brexit, and without a reciprocal alternative
arrangement with the EU, those who trade with Europe risk all sorts of
problems.72 Professor Jonathan Harris expressed similar concerns: One
would not have the same rules in the rest of the European Union, and one
would have the attendant risk of parallel proceedings in other courts that
could lead to inconsistent results.73

Impact on Londons legal market


40. In its written submission, the Law Society of England and Wales pointed
to anecdotal evidence of foreign businesses already being discouraged
from using choice-of-court agreements that name England and Wales as
the jurisdiction of choice in commercial contracts (see Box 5). If this trend
continued, the Law Society anticipated a detrimental [impact on] the legal
services sector in England and Wales and the economic contribution it makes
to the UK economy.74

71 Q14. See also Box 6 on the problems of parallel proceedings.


72 Q14
73 Q15
74 Written evidence from the Law Society of England and Wales (CJC0001), para 4
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Box 5: Choice-of-court agreements

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?

Box 6: Lis pendens and parallel proceedings

The original Brussels I Regulation, agreed in 2002 but replaced in 2012 by


the recast BIR, attracted criticism for its rigid adherence to the lis pendens
(proceedings pending) rule. This rule provided that where proceedings involving
the same cause of action between the same parties were brought in the courts
of different Member States, any court other than the court first seised must
stay its proceedings until such time as the jurisdiction of the court first seised
was established.80 The rule was developed to avoid parallel proceedings and to
minimise the risk of incompatible judgments on the same facts from differing
jurisdictions.
However, the rule gave rise to two related problems that the most recent
amendment of the BIR sought to solve. First, as confirmed by the CJEU
in its case law, the rule had to be applied rigidly, regardless of whether the
proceedings first instituted were commenced with a genuine wish to pursue
them to judgment, or with any genuine belief or prospect of maintaining that
the court in which they were instituted had jurisdiction under the Regulation.
Second, and in a large measure as a result, the rule was capable of being used or
abused to frustrate or undermine a choice-of-court agreement (see Box 5). The
practice of frustrating proceedings by issuing them first in Italys notoriously
slow legal system gave this tactic its name: the Italian Torpedo.
In response, the BIR included a new provision, which allowed the Member
State court specified in an exclusive jurisdiction clause to proceed to determine
a dispute, even if proceedings had been commenced first in another Member
State court. This amendment effectively disapplied the first-in-time rule in the
80
original Brussels I Regulation.

Inability to enforce judgments


44. For Sir Richard Aikens the Regulations importance lay in the rules ensuring
that judgments will be recognised and enforced across Europe. Without
these, Even if you have a jurisdiction system that appears to work it is
a major disadvantage if a judgment is produced by an English court that
cannot be enforced in other European Union states.81 Professor Harris QC
warned that without the BIR, we do not have the advantages of the free
enforcement of judgments for individuals around the European Union.82
45. Richard Lord QC agreed that any alternative runs the risk of a lack of
ability to enforce judgments, and the degree of confusion and uncertainty
goes much wider than that its loss would lead to a risk to businesses
and the country generally.83 Oliver Jones foresaw similar difficulties, and
predicted that when UK lawyers were asked if Brexit posed a risk to the
enforceability of UK judgments, they will say, yes there is.84
46. Our academic witnesses were more optimistic. Professor Fentiman believed
that the potential loss of this aspect of the Regulation would not be as
significant as some people imagine. While he welcomed the advantages

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

of having judgments automatically recognised across Europe, he argued


that the potential loss of these rules to the UK did not pose an existential
threat. In his view, there is a ready, workable solution: the common law.85
But he acknowledged that the common law offered a unilateral and not a
reciprocal solutionit would provide certainty for UK courts, but it would
not offer reciprocal obligations as between us and member states of the
EU.86
47. In relation to legal services, Professor Briggs described the ability to enforce
English judgments in EU Member States as a side issue.87 In his view,
the inability to enforce an English judgment in other Member states may
not be so much of a problem if it can be enforced in England, because, for
example, banks in which [defendants] assets are found may have branches
in London.88
48. Dr Louise Merrett, of Cambridge University, argued that the disadvantage
would be felt on the continent rather than in the UK, because their
judgments will not be automatically enforceable in England. That will be a
disadvantage for other European jurisdictions trying to compete with us.89
She also believed that if the UK failed to secure an agreement, the common
law offered a short-term solution, which would work well if we did nothing.
In the long-term, however, her preferred solution was for the Government
to try to negotiate a reciprocal regime.90
49. We consider the utility of the common law as a replacement for the BIR in
Chapter 4.

Loss of control over future iterations of this legislation


50. Looking beyond Brexit, Professor Peers warned that one risk of not being
part of the EU system is that it might be changed to take account of
the UK not being part of it any more. He speculated that the remaining
EU Member States might develop the system in such a way that you no
longer have the British influence and that it would develop as to attract
business away from London.91 For example, he said: One way is to make
enforcement more difficult than it is at the moment by raising additional
barriers.92
51. Oliver Jones agreed: If we lose a system like the current regime, we are
very much at the mercy of whatever national rules other member states may
choose to adopt in relation to us.93
52. While academic and legal witnesses differed on the post-Brexit
enforceability of UK judgments, it is clear that significant problems
will arise for UK citizens and businesses if the UK leaves the EU
without agreement on the post-Brexit application of the BIR.

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
93 Q14
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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.

The Great Repeal Billa solution?


56. The Government has promised that the Great Repeal Bill (GRB) will provide
legal certainty after the UKs exit from the EU, and 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).94
57. Professor Fentiman doubted the utility of the GRB to address the loss of
the BIR post-Brexit. He argued that the GRB would not be appropriate
to implement aspects of the current EU regime in this area as domestic
legislation. The reason was very simple: the BIR maintained rules that
in their nature operate in a reciprocal way, but there would be no reciprocity
post-Brexit if we were simply to include these rules in national legislation.95
58. Professor Briggs agreed. The BIR required reciprocal action on the part of
the other states [there] is no law which the United Kingdom can enact to
render English judgments entitled to recognition and enforcement in the rest
of Europe.96
59. The Minister sought to provide reassurance. He suggested that the great
advantage97 of the BIR lay in its reciprocal rules, and stated that the Great
Repeal Bill would ensure that all existing EU law that applies in our country,
the acquis as it is known, will be imported into UK law. There would be no
hiatus in coverage, and we will not have a gap.98
60. The evidence we received is clear and conclusive: there is no means
by which the reciprocal rules that are central to the functioning of the
BIR can be replicated in the Great Repeal Bill, or any other national
legislation. It is therefore apparent that an agreement between the
EU and the UK on the post-Brexit application of this legislation will
94 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]
95 Q1
96 Written evidence from Prof Briggs (CJC0002), para 10
97 Q39
98 Q40
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 21

be required, whether as part of a withdrawal agreement or under


transitional arrangements.
61. The Minister suggested that the Great Repeal Bill will address the
need for certainty in the transitional period, but evidence we received
called this into question. We are in no doubt that legal uncertainty,
with its inherent costs to litigants, will follow Brexit unless there are
provisions in a withdrawal or transitional agreement specifically
addressing the BIR.

Which alternative jurisdictions gain from the current uncertainty


62. We have already cited the Law Societys anecdotal evidence that Brexit has
introduced a degree of uncertainty into the application of the BIR to choice-
of-court agreements in the UK. This, in turn, has placed a question mark
over the legal protection conferred on UK-based citizens and businesses,
and over Londons pre-eminence as a legal market. We asked our witnesses
which jurisdictions might gain from this uncertainty.
63. Richard Lord QC warned that a regime in future that is inherently uncertain
is on the whole bad for business and for Britain. Uncertainty about how
uncertain it will be compounds that.99 He suggested that Paris, Hamburg
or Rotterdam might gain from this uncertainty.100
64. Hugh Mercer QC for the Bar Council predicted that litigants may well go to
the Netherlands or possibly Germany, although there the English-language
courts have had rather modest success. He suggested that global litigation
could be Paris, Geneva or Stockholm or New York or Singapore, which
is putting in a big pitch, or Dubai.101
65. Building on the Law Societys written evidence, Dr Helena Raulus said
that post the EU referendum [other jurisdictions] look at the UKs and
the English courts jurisdiction as only one of the options at this point, not
as an automatic option as previously.102 She continued: We have seen a
move to grabif you want to use that wordcommercial litigation for the
continental courts. The Dutch, for example, are building a commercial court
that also operates in English.103
66. Our witnesses also saw arbitration as a chief beneficiary. Hugh Mercer QC
said that arbitration could still be London,104 and Sir Richard Aikens
agreed: Ultimately the beneficiaries might actually be the arbitrators
You can specify arbitration in London, Geneva or wherever, have whichever
law you want and you can enforce it under the New York Convention
there is no problem.105
67. Oliver Jones agreed: My personal view of who will win out is the
arbitration centres, in particular given the New York Convention on the
universal enforceability of arbitration decisions (see Box 7). But he warned
that greater recourse to arbitration would come at a cost to the wider
legal system: Arbitration takes place in privateit is not an open, public
99 Q19
100 Q16
101 Q24
102 Q24
103 Q24
104 Q24
105 Q34
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22 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?

hearingand the more we push towards an arbitration centred model, the


more we lose open justice and the rule of law.106

Box 7: The New York Convention107

The 1958 UN Convention on the Recognition and Enforcement of Foreign


Arbitral Awards (sometimes referred to as the New York Arbitration Convention
or the New York Convention) applies to therecognition and enforcement
of foreign arbitral awardsand thereferral by a court to arbitration. Thus it
performs a similar but considerably more limited role as the BIR. It requires its
signatories to recognise arbitration agreements (Article II) and enforce them in
accordance with each States national rules (Article III). It also includes rules
dealing with the procedures for recognition (Article IV).
68. In response to these concerns, the Minister argued that UK law, particularly
English law, is renowned across the globe. In the Ministers view, We are
a very important legal power and my feeling is that although we need to
reach a sensible agreement we should not be too nervous about our future.
He did not believe that we will fall down the rankings [because] we are a
world brand in this area. He also asserted that we are the world leader in
commercial arbitration.108
69. 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.
70. 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.

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

Chapter 3: THE BRUSSELS IIA REGULATION AND THE


MAINTENANCE REGULATION

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?

Box 8: The Brussels IIa Regulation (BIIa)

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

118 Article 8 of the Brussels IIa Regulation


119 Articles 10 and 11 of the Brussels IIa Regulation
120 Also of relevance in this regard are: The Hague Convention 1980 on the civil aspects of child abduction
and The Hague Convention (1996) on jurisdiction, applicable law, recognition, enforcement and co-
operation in respect of parental responsibility and measures for the protection of children apply.
121 Article 41 of the Brussels IIa Regulation
122 Q30
123 Q7
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26 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?

provided much more certainty as a framework for children cases than we


had before.124

Box 9: The Maintenance Regulation

The EU Maintenance Regulation establishes similar rules on jurisdiction,


recognition and enforcement of decisions in matters relating to maintenance
obligations.
It is designed to enable a maintenance creditor (an individual to whom
maintenance is owed or alleged to be owed) easily to obtain in one Member
State a decision that will be automatically enforceable in another without
further formalities. It also establishes jurisdiction for the making of maintenance
decisions.125 The Regulation enables parties to a dispute to agree jurisdiction if
they wish (with choices to be based on the habitual residence of one of the parties
or the place of last common habitual residence or the court of the Member
State of which one party is a national).126 This freedom to agree does not apply,
however, in cases involving maintenance for a child.
The Regulation also includes a lis pendens rule (first-in-time rule), potentially
giving rise to the Italian Torpedo problems highlighted in Box 6.127
Unlike the the BIR and BIIa, the Maintenance Regulation includes rules on
the applicable law, namely, which Member States law should be applied to a
particular dispute (Article 15). It provides that the applicable law for maintenance
obligations should be determined in accordance with the Hague Protocol of
November 2007. This aspect of the Maintenance Regulation does not apply
to the UK, which applies English law to maintenance cases. There is a cost to
the enforceability of English decisions because they will not be automatically
recognised in another State if they are manifestly contrary to public policy in
that State, or where a decision was given in default of appearance, or the decision
is irreconcilable with an earlier decision given in another jurisdiction.128
125 126 127 128

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

The Ministers view


80. The Minister described the BIIa in particular as very important. He
acknowledged that without the mutuality and reciprocity introduced by
these Regulations there was the danger of parallel proceedings in different

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

countries over family matters that would create a range of problems. He


felt that apart from being chaotic, one party could exercise an economic
dominance over another, whereas, if there is one set of proceedings in one
country under one set of rules, that is less likely. He confirmed that their
content will have to be part of the negotiations, but was not necessarily
saying that we will argue for these Regulations.131
81. In dealing with the personal lives of adults and children, both the
Brussels IIa Regulation and the Maintenance Regulation operate in a
very different context from the more commercially focused Brussels
I Regulation (recast).
82. These Regulations may appear technical and complex, but the
practitioners we heard from were clear that in the era of modern,
mobile populations they bring much-needed clarity and certainty to
the intricacies of cross-border family relations.
83. We were pleased to hear the Minister recognise the important role
fulfilled by the Brussels IIa Regulation and confirm that the content
of both these Regulations will form part of the forthcoming Brexit
negotiations.

Box 10: Case study 2: the Maintenance Regulation

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

Potential problems if UK leaves the BIIa and the MR without


alternative arrangements in place
Loss of certainty and predictability
84. Having praised the contribution these Regulations make to the lives of
ordinary citizens living in the EU, Mr Tim Scott QC said that he would
be very concerned indeed if [the Regulations] were to be lost post-Brexit.132

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

Box 11: 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

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

Enforcement of court decisions


87. Mr Tim Scott QC raised the question of enforcement under both Brussels
IIa and the Maintenance Regulation. There are provisions for ready
enforcement, and again it would be a big loss if we were to lose them.136 Sir
Mathew Thorpe agreed:
In family law, it is true that the enforcement of orders is absolutely
crucial It is no good obtaining a judgment here in London in relation
to contact with children in Spain if that is not enforceable in the country
of habitual residence.137

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

Loss of provisions on child abduction


89. David Williams QC said that one of the most significant deficits would be
the loss of the child abduction protections in the BIIa (see Box 12). Without
them, he was clear that serious problems will arise and some children
will suffer very serious consequences. He noted that unremedied child
abduction led to mental health problems, and while he acknowledged
that there may not be many in England, he believed that the few British
children who would suffer because of the loss of this EU legislation were a
few too many.139

Box 12: Case study 3: the Brussels IIa Regulation

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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Loss of domestic application


90. Professor Bailey-Harris pointed out that, in contrast to the BIR, in the area
of UK family law, these Regulations are our domestic law. She warned that
We are not just talking about reciprocity and international cases [Article
3 of the BIIa] is our domestic divorce law, the court of first call, and similarly
with the Maintenance Regulation, whether it is a case with an international
dimension or not. She told us that if I were being divorced it is Article 3
of [the BIIa] that is the domestic law. That is a fundamental issue.140

Impact on family court system


91. On behalf of the Bar Council, Mr Tim Scott QC was concerned that the
loss of these Regulations would have a considerable impact on the workload
of the family courts and predicted that a potentially very large number of
cases will be imposed on an already fully stretched family court. He argued
that a lot of this work is done by lay magistrates and district judges, who
are not aware on a day-to-day basis that they are operating EU Regulations,
although, in fact, every case that comes before them is based on EU
Regulations. He warned that if we lose the EU Regulations, there will be
a massive retraining exercise.141
92. We have significant concerns over the impact of the loss of the Brussels
IIa and Maintenance Regulations post-Brexit, if no alternative
arrangements are put in place. We are particularly concerned by
David Williams QCs evidence on the loss of the provisions dealing
with international child abduction.
93. To walk away from these Regulations without putting alternatives in
place would seriously undermine the family law rights of UK citizens
and would, ultimately, be an act of self-harm.

The Great Repeal Billa solution?


94. When asked whether the Governments promised Great Repeal Bill would
help avoid any gaps in the legal protection provided by these Regulations,
Professor Rebecca Bailey-Harris said it will not.142 Jaqueline Renton said
that the issue of reciprocity would require more thought.143 Professor
Adrian Briggs stated that as far as the Regulations on matrimonial and
parental matters and maintenance are concerned, local re-enactment [via
the GRB] is impracticable.144
95. David Williams QC expressed similar reservations, dismissing the GRB as
an almost worthless solution. As with the BIR, the fundamental difficulty
was the impossibility of replicating the reciprocal arrangements that exist
under EU law in a purely domestic statute. The great advantage of the BIIa
was its reciprocal parts;145 enacting this EU legislation via the GRB would
mean that the Regulation would apply domestically, but in any dispute
between England and France you would have the 1996 Hague Convention

140 Q7
141 Q23
142 Q11
143 Q11
144 Written evidence from Prof Briggs (CJC0002), para 9
145 Q11
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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?

Chapter 4: OPTIONS FOR THE FUTURE

99. During our inquiry, witnesses proposed a number of alternative post-Brexit


solutions that could mitigate the loss of these Regulations, while taking into
account the Governments aim of bringing an end to the CJEUs jurisdiction
in the UK (see Box 13).

Box 13: No CJEU/no Danish model

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

Advice for the Government


Civil and commercial law
100. On behalf of the Bar Council, Hugh Mercer QC told us that for this area of
civil justice co-operation you need a sensible approach. The remaining EU
Member States had an interest in their citizens having certainty in dealing
with the UK, while the Government should recognise that our citizens
and our businesses need certainty dealing with the EU. He concluded that
both sides have a really strong mutual interest in making sure that the little
guy does not suffer as a result of Brexit when he is involved in cross-border
situations.151
101. Sir Richard Aikens pointed out that with the movement of people across
borders, and with trade with Europe both being as evident and important
as they are, it is inevitable in the civil and commercial sphere that there will
be cross-border disputes of all sorts. He argued that to dismiss from your
priorities list the question of how we are to deal with cross-border disputes
seems to me to be, with respect, irrational, so I hope that it is on the list
somewhere.152 The current uncertainty would create some anxiety, but
the solution was simply to get on and do a deal it is not beyond the wit

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

Non-CJEU alternatives for the BIR


Do nothing: the common law will suffice
106. Professor Richard Fentiman argued that, in the immediate aftermath of
Brexit, we do not need to do anything other than allow the common law
rules to fill the space.158 He believed that when the BIR fell away, there will
not be a vacuum; it will simply be the case that the widely used [common
law] rules, which are considered around the world as state of the art would
simply occupy the space vacated by the EU regime. In this way, there
would be no loss of performance post-Brexit. The courts and litigants will
be able to continue and the rules that would be used are very satisfactory.159
107. We put Professor Fentimans view to our other witnesses. Former Court
of Appeal judge the Rt Hon Sir Richard Aikens accepted that you could
go back. But this would not be satisfactory, it would create an enormous
amount of uncertainty, and for all areas of the law it would not be helpful.160

153 Q34
154 Q1
155 Q12
156 Q27
157 Q37
158 Q1
159 Q1
160 Q30
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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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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.

Seek UK Membership of Lugano Convention plus Hague Convention on choice-


of-court agreements
117. Professor Fentiman also suggested that a long-term solution might involve
membership of the Lugano Convention (see Box 14). He proposed
this approach because it would introduce a degree of uniformity into the
process, and all the evidence surrounding the Lugano Convention is
that having that soft approach to the CJEU is perfectly workable, and you
do not have to submit to its compulsory, mandatory judgments.172
118. Professor Peers said that whatever relationship we might wish to seek with
the European Union, the Lugano Convention is clearly there as a precedent.173
But, he added, the UK would inevitably lose the influence it currently enjoys
as an EU Member State, because we could not influence it by appearing in
court or having a British judge, a British Advocate-General, and so on, as
part of the system. On the other hand, it would mean that CJEU could not
issue rulings that will be directly binding on us.174

Box 14: The Lugano Convention

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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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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123. Alongside membership of the Lugano Convention, various witnesses also


proposed UK ratification of the 2005 Hague Convention on choice-of-
court agreements (see Box 15). Professor Fentiman described the 2005
Convention as an important international instrument.179 Professor Adrian
Briggs agreed.180

Box 15: 2005 Hague Convention on choice-of-court agreements

The 2005 Hague Convention on choice-of-court agreements seeks to promote


the freedom of businesses to agree that a particular court should have jurisdiction
to deal with disputes that might arise. It also ensures that judgments of the
chosen court are recognised and enforced by other courts. The Convention
covers an area which is dealt with, as between EU Member States by the BIR,
it is thus a matter of exclusive EU competence, and was ratified by the EU in
181
June 2015.181

124. Professor Jonathan Harris QC also suggested ratification of the 2005


Convention, noting that the UK is already bound by virtue of the EUs
ratification and the UK could ratify in its own right once it leaves the
European Union. He suggested that there would be some advantage to
reassuring the public and business if there was an early announcement of an
intention to ratify that Convention as soon as the United Kingdom can.182
125. Professor Harris also recommended that the Government announce that
if no other deal is forthcoming, the rules in what are currently called the
Rome I and Rome II Regulations on choice of law for contractual and non-
contractual obligations will be enacted into domestic statute, so at least we
would have certainty that choices of English law will continue to operate
on broadly the same basis.183 The Rome I and Rome II Regulations are
described in Box 16.

Box 16: Rome I and Rome II

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.

126. The combination of UK membership of the Lugano Convention,


implementation of the Rome I and II Regulations through the Great
Repeal Bill, and ratification of the Hague Convention on choice-of-

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?

court agreements, appears to offer at least a workable solution to the


post-Brexit loss of the BIR.
127. The inclusion in the Lugano Convention of a requirement for national
courts to pay due account to each others decisions on the content
of the Brussels I Regulation, without accepting the direct jurisdiction
of the CJEU, could be compatible with the Governments stance on
the CJEUs status post-Brexit, as long as the Government does not
take too rigid a position.
128. This approach will come at a cost. In particular, it will involve a
return to the Brussels I Regulation, with all its inherent faults, which
the UK as an EU Member State succeeded, after much time and
effort, in reforming.

Non-CJEU alternatives for the BIIa and the MR


Do nothing: return to the common law II
129. Sir Mathew Thorpe recalled that prior to the enactment of the BIIa and
Maintenance Regulations, the common law principle of forum conveniens
ruled family law. This principle, which still applies for non-EU cases,
involved a great deal of expensive litigation in trying to establish which
court was the more convenient. He added that even if litigants can afford
all the expenses it takes up court time.186
130. Tim Scott QC agreed, arguing that there are strong structural and practical
reasons against a return to the common law rules. He argued that if we
were to go back to forum conveniens in intra-EU cases a potentially very
large number of cases will be imposed on an already fully stretched family
court that is having to relearn the law.187

Fall back on alternative international arrangements: the 1996 Hague Convention


131. We also considered alternative international law solutions. David Williams
QC accepted that the 1996 Hague Convention (see Box 11) could offer the
UK a default position provided steps are taken to re-enact it. But, he
added, there would be a cost, because the Convention is not as extensive
in its coverage as the BIIa.188 As an example, he cited the BIIas mechanisms
for cooperation between national authorities, the European Judicial Network
(EJN), and practitioners. The advantage of the BIIa was that if you are
operating in the same system, it makes it much easier to work productively
together for the benefit of the child.189
132. Jaqueline Renton also highlighted the 1996 Hague Conventions
shortcomings: while there is a backstop on children, it does not provide a
divorce backstop. She also argued that the Convention would provide cover
on jurisdiction but there will be no reciprocal enforcement; you will
effectively be talking to yourself.190
133. Professor Rebecca Bailey-Harris recognised that finding solutions to the
loss of these two Regulations was a massive task. She echoed Jacqueline

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

The Lugano Convention as a replacement for the Maintenance Regulation


134. Turning to the MR, Professor Bailey-Harris suggested UK membership of
the Lugano Convention (see Box 14) as a potential alternative. She noted
that although [the Lugano system] does not have its own court, it takes on
the CJEUs jurisprudence as advisory.192
135. In contrast to the civil and commercial field, we are particularly
concerned that, save for the provisions of the Lugano Convention
on cases involving maintenance, there is no satisfactory fall-back
position in respect of family law.
136. Our witnesses were unanimous that a return to common law rules for
UK-EU cases would be particularly detrimental for those engaged in
family law litigation. The Bar Council also suggested that an already
stretched family court system would not be able to cope with the
expected increase in litigation.
137. The Bar Council specifically called for the EU framework in this
field to be sustained post-Brexit. But while this may be the optimal
solution in legal terms we cannot see how such an outcome can be
achieved without the CJEUs oversight.
138. 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.

The Ministers view


139. The Minister approached our questions regarding the UKs post-Brexit
options from two standpoints. First, he emphasised the Governments desire
to make a new agreement, a new relationship, with the EU for the future
that is constructive and tackles these important issues.193 He stated that
the Governments preference is to reach agreement within the two-year
period and for it to be implemented thereafter. If this proved impossible
with regard to the BIR, he noted that there are common law rules.194
140. As for the BIIa, he recognised that it was very helpful, but he did not
confirm the Bar Councils suggestion that the Regulations framework should
be maintained post-Brexit: We will not necessarily ask to be in Brussels
IIa; we may well make a separate agreement that one hopes has its main
provisions.195

191 Q11
192 Q9
193 Q38
194 Q40
195 Q42
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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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SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

The Brussels I Regulation (recast)


1. We acknowledge and welcome the UKs influence over the content of these
three EU Regulations which are crucial to judicial cooperation in civil
matters and reflect the UKs influence and British legal culture. We urge the
Government to keep as close to these rules as possible when negotiating their
post-Brexit application. (Paragraph 23)
2. The predictability and certainty of the BIRs reciprocal rules are important
to UK citizens who travel and do business within the EU. We endorse the
outcome of the Governments consultations, that an effective system of
cross-border judicial cooperation with common rules is essential post-Brexit.
(Paragraph 37)
3. We also note the Ministers confirmation, in evidence to us, that the
important principles contained in the Brussels I Regulation (recast) will
form part of the forthcoming negotiations with the remaining EU Member
States. (Paragraph 38)
4. While academic and legal witnesses differed on the post-Brexit enforceability
of UK judgments, it is clear that significant problems will arise for UK
citizens and businesses if the UK leaves the EU without agreement on the
post-Brexit application of the BIR. (Paragraph 52)
5. 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. (Paragraph 53)
6. 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. (Paragraph 54)
7. 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. (Paragraph 55)
8. The evidence we received is clear and conclusive: there is no means by which
the reciprocal rules that are central to the functioning of the BIR can be
replicated in the Great Repeal Bill, or any other national legislation. It is
therefore apparent that an agreement between the EU and the UK on the
post-Brexit application of this legislation will be required, whether as part of
a withdrawal agreement or under transitional arrangements. (Paragraph 60)
9. The Minister suggested that the Great Repeal Bill will address the need for
certainty in the transitional period, but evidence we received called this into
question. We are in no doubt that legal uncertainty, with its inherent costs
to litigants, will follow Brexit unless there are provisions in a withdrawal or
transitional agreement specifically addressing the BIR. (Paragraph 61)
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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)

The Brussels IIa Regulation and the Maintenance Regulation


12. In dealing with the personal lives of adults and children, both the Brussels
IIa Regulation and the Maintenance Regulation operate in a very different
context from the more commercially focused Brussels I Regulation (recast).
(Paragraph 81)
13. These Regulations may appear technical and complex, but the practitioners
we heard from were clear that in the era of modern, mobile populations they
bring much-needed clarity and certainty to the intricacies of cross-border
family relations (Paragraph 82)
14. We were pleased to hear the Minister recognise the important role fulfilled
by the Brussels IIa Regulation and confirm that the content of both
these Regulations will form part of the forthcoming Brexit negotiations.
(Paragraph83)
15. We have significant concerns over the impact of the loss of the Brussels IIa
and Maintenance Regulations post-Brexit, if no alternative arrangements
are put in place. We are particularly concerned by David Williams QCs
evidence on the loss of the provisions dealing with international child
abduction. (Paragraph 92)
16. To walk away from these Regulations without putting alternatives in place
would seriously undermine the family law rights of UK citizens and would,
ultimately, be an act of self-harm. (Paragraph 93)
17. 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. (Paragraph 97)
18. 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 (Paragraph 98)
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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 43

Options for the future


19. 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. (Paragraph 114)
20. 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).
(Paragraph 115)
21. 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. (Paragraph 116)
22. The combination of UK membership of the Lugano Convention,
implementation of the Rome I and II Regulations through the Great
Repeal Bill, and ratification of the Hague Convention on choice-of-court
agreements, appears to offer at least a workable solution to the post-Brexit
loss of the BIR. (Paragraph 126)
23. The inclusion in the Lugano Convention of a requirement for national
courts to pay due account to each others decisions on the content of the
Brussels I Regulation, without accepting the direct jurisdiction of the CJEU,
could be compatible with the Governments stance on the CJEUs status
post-Brexit, as long as the Government does not take too rigid a position.
(Paragraph127)
24. This approach will come at a cost. In particular, it will involve a return to
the Brussels I Regulation, with all its inherent faults, which the UK as an
EU Member State succeeded, after much time and effort, in reforming.
(Paragraph 128)
25. In contrast to the civil and commercial field, we are particularly concerned
that, save for the provisions of the Lugano Convention on cases involving
maintenance, there is no satisfactory fall-back position in respect of family
law. (Paragraph 135)
26. Our witnesses were unanimous that a return to common law rules for UK-
EU cases would be particularly detrimental for those engaged in family
law litigation. The Bar Council also suggested that an already stretched
family court system would not be able to cope with the expected increase in
litigation. (Paragraph 136)
27. The Bar Council specifically called for the EU framework in this field to be
sustained post-Brexit. But while this may be the optimal solution in legal
terms we cannot see how such an outcome can be achieved without the
CJEUs oversight. (Paragraph 137)
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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

Appendix 1: LIST OF MEMBERS AND DECLARATIONS OF


INTEREST

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

During consideration of the report the following Member declared an interest:


Earl of Kinnoull
Non-practising barrister
Baroness Prashar
Deputy Chair British Council
Non Executive Director Nationwide Building Society
Lord Selkirk of Douglad
Diversified investment portfolio - McInroy and Wood
Income fund managed by third party

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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BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES? 47

Appendix 2: LIST OF WITNESSES

Evidence is published online at http://www.parliament.uk/brexit-civil-justice-


cooperation/ and available for inspection at the Parliamentary Archives (020 7219
3074).
Evidence received by the Committee is listed below in chronological order of oral
evidence session and in alphabetical order. Those witnesses marked with a ** gave
both oral and written evidence. Those marked with * gave oral evidence and did
not submit any written evidence. All other witnesses submitted written evidence
only.

Oral evidence in chronological order


* Dr Louise Merrett, Reader in International Law, QQ 15
University of Cambridge
* Professor Richard Fentiman, Professor of Private QQ 15
International Law, University of Cambridge
* Professor Steve Peers, Professor of European Union QQ 15
Law and Human Rights Law, School of Law,
University of Essex
* Mr David Williams QC, 4 Paper Buildings QQ 612
* Ms Jacqueline Renton, 4 Paper Buildings QQ 612
* Professor Rebecca Bailey-Harris, 1 Hare Court QQ 612
* Professor Jonathan Harris QC, Serle Court Chambers QQ 1320
* Mr Richard Lord QC, Brick Court Chambers QQ 1320
* Mr Oliver Jones, Brick Court Chambers QQ 1320
* Mr David Greene, Edwin Coe LLP, Chair of the Law QQ 2128
Societys Legal Affairs and Policy Board
* Dr Helena Raulus, Policy Adviser on the EU Internal QQ 2128
Market
* Mr Tim Scott QC, 29 Bedford Row, the Bar Council QQ 2128
* Mr Hugh Mercer QC, Essex Court Chambers, the Bar QQ 2128
Council
* The Rt Hon Sir Mathew Thorpe, associate member of QQ 2937
1 Hare Court
* The Rt Hon Sir Richard Aikens, member of Brick QQ 2937
Court Chambers
* The Rt Hon Sir Oliver Heald QC, Minister of State for QQ 3846
Courts and Justice, Ministry of Justice
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48 BREXIT: JUSTICE FOR FAMILIES, INDIVIDUALS AND BUSINESSES?

Alphabetical list of all witnesses


* The Rt Hon Sir Richard Aikens, member of Brick
Court Chambers
* Professor Rebecca Bailey-Harris, 1 Hare Court
Professor Adrian Briggs, Professor of Private CJC0002
International Law, University of Oxford
* Professor Richard Fentiman, Professor of Private
International Law, University of Cambridge
** Mr David Greene, Edwin Coe LLP, Chair of the Law CJC0001
Societys Legal Affairs and Policy Board
* Professor Jonathan Harris QC, Serle Court Chambers
* The Rt Hon Sir Oliver Heald QC, Minister of State for
Courts and Justice, Ministry of Justice
* Mr Oliver Jones, Brick Court Chambers
* Mr Richard Lord QC, Brick Court Chambers
* Mr Hugh Mercer QC, Essex Court Chambers, the Bar
Council
* Dr Louise Merrett, Reader in International Law,
University of Cambridge
* Professor Steve Peers, Professor of European Union
Law and Human Rights Law, School of Law,
University of Essex
** Dr Helena Raulus, Policy Adviser on the EU Internal CJC0001
Market, the Law Society
* Ms Jacqueline Renton, 4 Paper Buildings
* Mr Tim Scott QC, 29 Bedford Row, the Bar Council
* The Rt Hon Sir Mathew Thorpe, associate member of
1 Hare Court
* Mr David Williams QC, 4 Paper Buildings

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