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 Union’s (CJEU) jurisdiction in the UK. 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.The Government’s chosen means for severing the UK’s (legal) ties with the EU is to introduce the Great Repeal Bill (GRB), which “will provide legal certainty over our exit from the EU”. 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).
3.At the time of the referendum on the UK’s Membership of the EU in June 2016, the EU’s 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). 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. 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. The so-called Maintenance Regulation (MR) (see Box 9).
4.All three Regulations were subject to the UK’s opt-in arrangements, 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”. Indeed, since the referendum result, the Government has decided to opt into the current renegotiation of the BIIa.
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”. The European Council
The European Councilalso 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”. 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.
Subsequent European Councils renewed the Member States’ commitment to the Genuine Area of Justice and sought to widen and build upon these aims.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”. The Member States attached “great importance to the continued development of judicial cooperation in civil matters” and invited the Commission to propose legislation in the field of family law addressing the “recognition and enforcement of decisions on maintenance”.
Further, in Stockholm in 2010, the European Council noted “with satisfaction”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”.
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”.
6.For the UK, after Brexit, the certainty of civil justice cooperation directly overseen by the CJEU will cease.
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 EU’s 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 EU’s 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 UK’s market for legal services; legal advice; and, commercial litigation. According to the Government 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 UK’s economy. 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).
12.Inevitably Brexit, and the Government’s 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”. But, 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 Government’s White Paper.
13.The purpose of this report is therefore to illustrate the central importance of these Regulations to the UK’s 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 Government’s 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 Minister’s statement to the Conservative party conference in September: “Let’s state one thing loud and clear … we are not leaving [the EU] only to return to the jurisdiction of the European Court of Justice. That’s not going to happen.” The implications of this position for civil justice are the subject of this report.
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.
1 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, pp 13–15: [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 Government’s negotiation objectives for exiting the EU, 17 January 2017: [accessed 9 February 2017]
3 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, p 9, para 1.1: [accessed 27 January 2017]
4 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017 p 10: [accessed 27 January 2017]
5 Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, , 20 December 2012, pp 1–32
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, , 23 December 2003, pp 1–29
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, , 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’ , consolidated version of 26 October 2012, pp 0001–0390
10 Tampere European Council 15 and 16 October 1999, ‘Presidency Conclusions’, para 2: [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: [accessed 27 January 2017]
13 Tampere European Council 15 and 16 October 1999, ‘Presidency Conclusions’, para 34: [accessed 27 January 2017]
14 See The Hague Council Conclusions: The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, , 3 March 2005, and the Stockholm Programme: An Open and Secure Europe Serving and Protecting Citizens, , 4 May 2010.
15 Introduction to The Hague Council Conclusions, , 3 March 2005
16 The Hague Council Conclusions, 3 March 2005, para 3.4.1
17 The Hague Council Conclusions, , 3 March 2005, para 3.4.2
18 The Stockholm Programme, , 4 May 2010, para 3.1.
19 The Stockholm Programme, , 4 May 2010, para 3.1.2
22 The Law Society, The Economic Value of the Legal Services Sector report, March 2016: [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): [accessed 27 January 2017]
25 Theresa May MP, Speech to the Conservative Party Conference on Brexit, 2 October 2016: [accessed 27 January 2017]