Professor Steve Peers

Let’s say you’re a well-known UK politician who spends most of their time speaking on British radio or working in the US, only occasionally attending their primary job in France or Belgium. Imagine this politician is divorcing their German spouse. Which court and legal system would handle the divorce and child custody matters?

This scenario falls under the larger subject of international civil litigation, also known as private international law, which is the focus of the UK government’s most recent position paper on Brexit negotiations. This document provides insight into the UK’s desire for a close relationship with the EU post-Brexit while remaining ambiguous on certain key issues.

It’s crucial to understand that this paper does not address the future of UK-EU dispute resolution post-Brexit. That topic will be covered in a separate position paper. Instead, it focuses on how international private legal disputes between individuals or businesses in the UK and the EU will be handled after Brexit.

The paper helpfully outlines the current EU laws in this area that the UK has opted into, such as general rules on jurisdiction and conflicts of laws in civil and commercial matters; specific rules for insolvency, divorce, child custody, maintenance, and restraining orders; and relevant laws concerning simplified legal processes, document delivery, legal assistance, evidence collection, and the European Judicial Network. The paper also mentions discussions on how these laws operate. (For further information on these Brexit-related issues, consult the latest House of Lords report.)

Note that the UK has opted out of other relevant EU laws, such as those concerning asset division after divorce (and the dissolution of civil partnerships), inheritance, and conflicting divorce laws. (For a comprehensive look at EU law in this area, see the relevant chapter in the second volume of my book, EU Justice and Home Affairs Law).

This paper focuses primarily on the future relationship between the UK and the EU in this area, rather than the UK’s withdrawal from the EU. However, it briefly addresses the withdrawal at the end, responding to the EU’s position paper on the UK’s exit from this legal area. The UK government is correct in stating that there is no need for transitional arrangements as long as the UK remains subject to EU law in this field after Brexit. However, the EU refuses to discuss any aspect of its future relationship with the UK until “sufficient progress” is made on the UK’s so-called “divorce bill” and the rights of UK and EU citizens. (It’s worth noting that if and when the EU and the UK agree on post-Brexit treaties in this domain, the EU typically decides by a qualified majority vote, with the exception of family law, where a veto applies. The ECJ has ruled that Member State ratification of such treaties is not required in at least some key areas, as the EU has exclusive competence).

There will likely need to be a way to bridge the gap between Brexit and any future agreement between the UK and the EU. This will most likely take the form of a temporary extension of existing EU law as part of the Brexit withdrawal agreement. The position paper, however, makes no mention of this, possibly because the UK government has not finalized the details or because the EU insists on maintaining ECJ jurisdiction during that period.

Future relationship

What kind of relationship with the EU does the UK government envision in the future? The paper advocates for a “new partnership…reflecting our close existing relationship” but does not specify which laws the UK wishes to remain a part of. One can only hope that the government will at least inform the EU which laws it intends to keep following.

However, there is one thing the UK government explicitly does not want: the continuation of the ECJ’s “direct” jurisdiction. While the term “direct jurisdiction” is not clearly defined, we can infer what the government will accept (as discussed further below). The reader is left with the distinct impression that the UK is content to continue participating in all of the EU laws it has already signed up for, with the exception of removing the ECJ’s direct jurisdiction. It’s similar to demolishing and rebuilding a house simply to replace a single brick.

The paper also fails to address a critical question: what happens if an existing EU law is revised after Brexit? This is not a hypothetical scenario. A proposal to revise the current EU law on divorce and child custody already exists. The UK has already agreed to participate in the negotiations. However, because negotiations are moving slowly, they may not be completed by Brexit. Other laws in this area are negotiated over time. So, how should this issue be addressed?

International treaties

The paper appears to want to reassure those who litigate in the UK, particularly in London, that the UK will remain “open for business” in this area after Brexit. To that end, the government affirms its continued participation in a number of international treaties in this field (as opposed to EU law), which were drafted under the auspices of an international organization focused on international civil litigation: the Hague Conference on Private International Law, including the crucial Hague Convention on child abduction. This will be straightforward for the majority of these treaties because the UK is a party to them in its own right, not as an EU Member State. The UK participates in some others solely as an EU Member State, but transitioning to participating in its own name should be simple: it can simply sign and ratify them on Brexit Day.

However, the UK also wishes to remain a signatory to the Lugano Convention, which extends an earlier version of the primary EU law on civil and commercial jurisdiction to relations between the EU and EFTA states (Norway, Iceland, and Switzerland, as well as EU Member State Denmark for a variety of complicated reasons). This is a completely different situation. According to that Convention, in order to sign up in its own name, the UK must either become an EFTA state (which is a significant issue in and of itself, as EFTA is a trade agreement) or obtain a special invitation to sign. As the government’s position paper acknowledges, the Convention only applies to an earlier version of EU law, which is problematic.

The Lugano Convention also raises concerns about the ECJ. According to the Convention, courts in non-EU countries must “pay due account” to ECJ rulings. As a result, we can conclude that the UK government does not believe that such an obligation violates its “red line” against the ECJ’s “direct jurisdiction.” Given that the UK appears to want to maintain participation in other relevant EU laws, it would have been preferable to state this explicitly and propose it as a model for UK-EU relations in this area. Indeed, it could serve as a model for other areas where the UK wants to keep participating in EU laws as a non-EU country. Perhaps the upcoming paper on EU-UK dispute resolution will elaborate on this.

Furthermore, the ECJ clause in the Lugano Convention is similar (but not identical) to the ECJ clause in the EU Withdrawal Bill proposed by the government, which states that pre-Brexit ECJ rulings remain binding (subject to being overruled by the UK Supreme Court, the government, or Parliament), while post-Brexit ECJ rulings may be considered by UK courts.

This may be a sufficient compromise to appease hardline Brexiteers; time will tell. It should be acceptable to the EU, given that it has been accepted in the context of relations with EFTA states for nearly three decades (the Lugano Convention was first adopted in 1988). However, the UK is requesting a closer relationship in this area of law than any other non-EU country. In any case, the areas of law where the EU insists on an ECJ role (citizens’ rights, the “divorce bill,” and a transitional deal) will be more difficult to resolve. Only time will tell if talks ultimately fail, either because of these ECJ issues or because of the bill itself.

Barnard & Peers: chapter 27

JHA4: chapter II:8

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