Brexit and the legal order

With successive rounds of Brexit negotiations, and now the beginning of serious parliamentary scrutiny of the EU (Withdrawal) Bill, initial ministerial reassurances regarding timescales and prospects for progress are beginning to take a much needed reality check.

Fortunately we now hear less from the UK Government about being prepared to leave without agreement, and more of the importance of delivering some equivalent to the many arrangements that at present minimise practical issues arising in relations with other European countries.

In the legal sphere, for example, last month’s policy paper “Providing a cross-border civil judicial co-operation framework” states at the outset that it is vital for UK and EU consumers, citizens, families and businesses that there are coherent common rules to govern interactions between legal systems, and that to this end, the UK as a non-member state will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU.

This would include “close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework”. The Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters will be incorporated into domestic law, supporting the continuation of both cross-border trade and the protection of family law rights.

This is all well and good, but it is regrettable that the Government has been so fixated with excluding any future role for the EU Court of Justice. The impression is given sometimes that ministers, including the Prime Minister, do not have a clear picture of how the court operates – only for rulings in principle on points of EU law in cases referred from national courts, which are then applied by those courts. Nor is it obvious why avoiding its jurisdiction should appear to take a higher priority than securing the best form of future trading relationship with the EU for the health of the economy. The closer our continuing links with Europe, and the Government’s professed aim is a “deep and special partnership with the EU”, the more certain it is that questions will arise that may require a ruling by the CJEU.

As the clock ticks down towards the March 2019 expiry of the article 50 notice (barring an agreed extension), it will in addition be essential, barring earlier agreement on all the above, to ensure that any transitional arrangements cover cross-border family and private commercial issues alongside the headline continuation of the ability to trade.