Lawyers in Britain are hopeful that some level of cooperation between the United Kingdom and the European Union can help ensure a smooth transition following Brexit, particularly in relation to cross-border legal disputes, as well as in relation to civil and commercial law generally.
In a new paper, ‘Providing a cross-border civil judicial cooperation framework', which was published on 22 August, the government says that non-EU protections are already in place in many areas because of instruments such as the Hague Convention. However, it has also made clear its intention to foster "close and comprehensive cross-border civil judicial cooperation on a reciprocal basis" in other areas. This is undoubtedly necessary. The Hague Convention, for example, does provide certain protections in relation to the return of abducted children, but these are not as swift or effective as those that exist within EU agreements.
However, the level of cooperation required across multiple legal spheres is inevitably causing some worries that those with interest, whether at a personal or business level, in both the UK and EU could face years of limbo. As justice secretary David Lidington recently commented on BBC Radio 4's Today Programme, "if you are a Swede who's bought from a British company online and think you've been diddled in the deal, you want redress"; so the list of similar possible examples could be endless.
What we do know so far is that when we do eventually leave the EU, we will no longer be party to the judicial cooperation system that exists between EU Member States. The scheme applies to many areas of the law, from child, family and matrimonial matters to more arcane commercial matters. It also lays out clear rules in relation to legal aid for disputes involving multiple EU countries.
The matter of cooperation should be addressed as a priority. As it stands there are around one million British citizens living in the EU and around three million EU citizens residing in the UK. These people, including hundreds of thousands of families, need to be reassured that they have the full protection of the law.
The government has said that it is committed to "increasing international civil judicial cooperation with third parties" and is "clear on the value of international and intergovernmental" agreements. However, what this means in practice, remains to be seen and at the moment there are, unfortunately, no guarantees as to the kinds of deals that the UK might be able to reach with member EU states.
Furthermore, the Government's report indicates that leaving the EU will "bring an end to the direct jurisdiction of the [Court of Justice of the European Union] because the [Court of Justice of the European Union] derives its jurisdiction from the EU Treaties". It does seem extraordinary and farcical that any successful post-Brexit agreements would have to be geared towards building, on a reciprocal basis, cross-border legal frameworks that serve to mirror the EU systems that we already have in place.
But this element of farce should not distract us from the seriousness of what is at stake. For example, family law cases involving UK and EU Member States are about the lives of wives, husbands, and children. They involve crucial matters such as divorce financial settlements, child maintenance, child residence and child abduction. Uncertainty and delays regarding the law and jurisdiction could be disastrous to anyone caught up in post-Brexit limbo.
"Civil justice cooperation rules set the basic parameters that let us live, work, and play across Europe," Law Society vice president Christina Blacklaws recently commented. "They allow us clear ways to resolve problems when they occur across borders, and give business defined rules to follow with the confidence UK business needs to trade and invest
David Davis, Secretary of State for Exiting the European Union, is currently trying to work out exactly what leaving the EU might look like, but as it stands, there is little in the way of clear planning and it is hard to shake the thought that at the moment Davis's job is effectively to be both executioner and resuscitator.
However, we should not simply submit to doom and gloom (however tempting it might be). There is some encouragement to be taken from the fact that we are trying to talk about judicial cooperation, and the government's proposals are at least some kind of move towards a solution.
"Civil justice cooperation rules set the basic parameters that let us live, work, and play across Europe," said Law Society vice president Christina Blacklaws. "They allow us clear ways to resolve problems when they occur across borders, and give business defined rules to follow with the confidence UK business needs to trade and invest. Making sure these clear and effective rules continue or are replaced will be a vital part of making Brexit work."
It's a long road ahead and the government must keep consulting lawyers and solicitors if they are to have any chance of getting post-Brexit legal issues right, but hopefully, the future of cross border disputes is not as bleak as Brexit is currently making it look.
