Decoding the Government’s Plan for Brexit: Judicial Cooperation – Part 1

Posted in Dispute resolution and litigation Enforcement UK and EU legal framework

The UK Government’s Future Partnership Paper on Providing a cross-border civil judicial cooperation framework contains little to disagree with. Unfortunately, that is because it contains little of substance at all.  And, where it does stray into specifics, it betrays a worrying lack of understanding of how the international regime currently operates.

The Paper principally consists of sentiments advocating a continuing, close relationship with the EU. This is to be accomplished by a new agreement with the EU that allows for “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 Paper also states that the UK “will seek to continue to participate in the Lugano Convention that, by virtue of our membership of the EU, forms the basis for the UK’s civil judicial cooperation with Norway, Iceland and Switzerland”. This aspiration directly contradicts that of entering into a new agreement.

It is correct that the Lugano Convention currently determines judicial cooperation between the UK (as an EU Member State) and Norway, Iceland and Switzerland. Also by virtue of its EU membership, the UK is part of the Brussels Regulation, which trumps the Lugano Convention for cooperation with EU Member States. There is a hierarchy: the Brussels Regulation is top, extending to all EU Member States; second is the Lugano Convention, extending to EU Member States and all non-EU signatories to the Convention, that is, Norway, Iceland and Switzerland; finally, come other international treaties and then the common law. Remove the Brussels Regulation and the Lugano Convention is top. From the viewpoint of a non-EU Member State, the Lugano Convention determines judicial cooperation with all EU Member States as well as Norway, Iceland and Switzerland. So, for Switzerland, for instance, it is the Lugano Convention that governs the relationship with France and Germany as well as Norway and Iceland.

If the UK were to become a signatory to the Lugano Convention after Brexit, this would not be a minor adjunct to the international regime affecting only our relationship with Norway, Iceland and Switzerland. It would be a wholesale replacement for the existing regime with the EU. There would be no room for a new agreement. In fact, the Lugano Convention itself satisfies the requirements set out in the Paper for an agreement with the EU that is reciprocal and closely matches the current framework.

If the Paper had proposed the Lugano Convention as a new basis for judicial cooperation with Europe after Brexit, that would have made sense. But to suggest that the UK would join the Lugano Convention after Brexit which would only govern its relationship with Norway, Iceland and Switzerland does not.

Any new framework will need the agreement of all EU Member States as well as any other countries that are affected. The Lugano Convention and any new agreement are identical in that respect. So it may not matter that the Paper does not differentiate between these two options correctly. But, in a Paper that is so short of detail, it is a concern to find this inaccuracy.

In Part 2 of this series, we will examine what the Paper has to say about another key aspect of judicial cooperation – the role of the CJEU.

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