News In Focus
Society calls for recogniton and enforcement of UK and EU citizens' rights
The Law Society of Scotland has said that UK and EU negotiating teams must reach just, fair and practical agreements which do not disadvantage UK or EU citizens and businesses which need to go to court to resolve cross-border disputes or assert their rights after Brexit.
The UK has opted in to a number of civil justice instruments that support the Treaty on the Functioning of the European Union (TFEU).
These allow for judicial cooperation in civil matters which have cross-border implications and include mutual recognition and enforcement of civil and commercial judgements across member states, and rules governing cross-border jurisdiction disputes.
The Law Society has said it agrees with the UK Government that these issues should form an important part of the withdrawal negotiations and has welcomed the government’s position that it will ‘seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU’.
Michael Clancy, Director of Law Reform at the Law Society of Scotland, said: “Citizens and businesses in the UK and across the EU currently rely on EU civil justice laws to deal with cross-border contractual and business disputes, divorce and family law matters, and consumer disputes.
“They must be able to access an appropriate route to resolve disputes and it will be crucial to have agreement prior to leaving the EU to allow cooperation between different EU states on the way courts deal with cross-border cases, to prevent additional cost, delay and distress for people.
“Cross-border trade will continue after Brexit so it will be essential to ensure that consumers can still have confidence, particularly if they are buying online, that they can seek redress if needbe when buying from sellers in other member states.
“Similarly there will need to be clear and workable rules for businesses involved in cross-border trade to resolve any disputes. This would be particularly important for small businesses as they, like consumers, will have limited resources but should be able to take action in the event of something going wrong.”
EU law also covers a number of areas relating to cross-border family cases, including divorce, mutual recognition and enforceability of judgements concerning parental responsibility and also go over and above the rules offered by the Hague Convention, providing a mechanism for returning abducted children. Making sure there can be collaboration at EU level would help promote speedier outcomes – of particular importance given the sensitive nature of family law cases, particularly where children and their wellbeing are involved.
Michael Clancy said: ““Stability and predictability in the law is vital and the negotiations should strive to achieve that.
“There will be many UK citizens still living and working in EU states as well as those from the EU who continue to live here in the UK, following Brexit.
“In the case of family breakdown, for example, there will have to be something to replace the EU Maintenance Regulation which provides rules for assessing jurisdiction in child maintenance disputes and for identifying the law which will be applied, as well as for the recognition and enforcement of maintenance decisions from other EU member states’ Courts.
“At the moment a parent living in the UK can pursue child maintenance costs from the other parent if they lived elsewhere in the EU, however there is currently no clear picture on how this would be done post-Brexit.
“When the UK leaves the EU this whole body of law will cease to apply in the UK and unless there is provision in the Withdrawal Agreement, a number of different bilateral treaties and conventions will need to be adopted - as was the case prior to the TFEU and the EU. Without agreement prior to leaving the EU, there will be significant cost and delay and leave citizens with civil or family law issues facing huge uncertainty so it will be crucial to ensure that there can be agreement prior to exit day.”
The UK Government has published a paper on providing a cross-border civil judicial cooperation framework.
The Law Society of Scotland's work on Brexit is available to read in the international section of our website.