UK crime, justice and law after Brexit: what are the implications?

Future cooperation on the issue of policing and criminal justice is, as the government acknowledges, a crucial aspect of the future UK/EU relationship, and it has expressed a preference for an arrangement similar to its current deal under the Lisbon Treaty. However, the EU is only prepared to offer an agreement similar to those it has with other non-member countries.

Without a deal, the Institute of Government has warned that the UK will revert to ‘the patchwork of cumbersome arrangements that predated EU co-operation’, particularly losing the European arrest warrant (EAW). This would mean slower extradition of dangerous criminals from the UK, and the risk that fewer people would be returned to this country to face justice in the absence of a UK-EU agreement.

The EAW is vital for speedy extradition between EU member states. However, if the UK cannot keep the EAW – or there is an operational gap between it ceasing to apply after Brexit and a suitable replacement coming into force – there would be ‘a risk to the safety of the people of the UK’, according to the EU Home Affairs Sub-Committee (This is one of the six sub-committees of the European Union Select Committee). In default, the UK would instead revert to the 1957 Council of Europe Convention on Extradition as the legal basis for extradition. The subcommittee heard evidence that this would be inadequate, counterproductive and inefficient.

Also vital to the UK’s existing cross-border law enforcement and security is the Second generation Schengen Information System (a database of real-time alerts), which includes information on people wanted under a EAW as well as suspected foreign terrorist fighters and missing people. The sub-committee warns that the UK could lose access to this data-sharing platform.

Access to EU databases is also crucial for effective law enforcement; however, this is also at risk and UK law enforcement agencies will find it harder to get crucial information for investigations. Whether an acceptable UK/ EU model of cooperation is attainable has yet to be seen. The EU has made soundings that it does want continuing law enforcement co-operation following Brexit, but the government has conceded that both sides need to make concessions.

Legal and constitutional issues

Many Brexit-related constitutional and legal issues are reaching both the UK courts and those in EU member states. These have ranged from issues arising out of the Brexit process itself (as far back as the referendum campaign), including electoral illegalities, the legality of the negotiations and the revocability of article 50 of the Treaty on European Union, citizens’ rights after Brexit, extradition, asylum, trademark protection and dispute resolution.

Some cases have been swiftly put to bed while others continue to work their way through the courts. In Shindler and others v Council of the European Union Case T-458/17, 26 November 2018, the General Court of the European Union rejected a claim by British expatriates that the referendum was invalid on the basis that they were excluded from voting because they had lived abroad for more than 15 years. An appeal to the Court of Justice of the European Union (CJEU) is underway.

In Slowakische Republik v Achmea BV Case C-284/16, 6 March 2018, a case concerning intra-EU investment, the CJEU’s ruling suggested that, after Brexit, the UK will not be able to avoid the impact of EU law and of CJEU decisions in the context of dispute settlements. For interested readers, a House of Commons Library Briefing Paper gives a useful summary of the key rulings to date.

Citizenship is likely to be a key issue in many forthcoming cases. The acceptance by the District Court of Amsterdam in the Netherlands that Brexit has created insecurity for many British citizens is a portend of future cases (see, for example, Williams and others v the State of The Netherlands and the Municipality of Amsterdam C/13/640244/KG ZA 17-1327 FB/AA, 7 February 2018 (known as the Amsterdam case)). The court found that it was questionable whether Brexit would result in Britons losing their freedom of movement and residence rights automatically, and that ultimately it is for the CJEU to decide whether Britons would still benefit from the rights derived from their EU citizenship.

Dispute resolution and enforcement issues

Arbitration, including enforcement of arbitral awards, will be unaffected by Brexit, so businesses that in general resolve their disputes through arbitration have little cause for concern. There the certainty ends, however, with three matters having been singled out by the EU Justice Sub-Committee for requiring ‘the necessary provisions for enforcement and dispute resolution after Brexit’. These are the enforcement of the Withdrawal Agreement, arrangements during the proposed transition period, and a dispute resolution system to be implemented under any separate agreement reached on the future relationship between the EU and the UK. In addition, there are related justice cooperation issues in civil, family and criminal law.

So, could there be an effective system for dispute resolution and enforcement post-Brexit?

In its report, the EU Justice Sub-Committee stated its belief that liabilities and obligations under a withdrawal agreement may arise for many years after the UK’s withdrawal from the EU. The sub-committee also warns that without judicial oversight any ‘intractable’ disagreements with the EU will be ‘potentially insoluble’ (page 30).

Furthermore, it warns that individuals and businesses would be unable to protect and enforce their rights. During any transition period (if there is a deal) continued jurisdiction for the CJEU is inevitable, but the sub-committee argues that this should be ‘only for a reasonable, time-limited period’, and that there should be a ‘longstop’ for any claims arising during transition (page 34).

And what of the long-term?

There will be no one-size-fits-all mechanism for enforcement, says the sub-committee, which warns particularly of ‘grave concerns’ on issues of justice cooperation in civil, family and criminal law (page 4). Particularly, it recommends that the government should seek to maintain the closest possible cooperation with the EU on family justice matters and, in particular, to retain a system for mutual recognition and enforcement of judgments.

The sub-committee also warns of the potential ‘negative impact’ on the international standing of the UK’s common law system after Brexit in view of the importance of the jurisdiction of the CJEU internationally (page 4). This - it reasons - is because the UK’s ability to affect the development of case law in the EU is likely to diminish significantly. Furthermore, the existing ability of the UK to request a preliminary reference from the CJEU, combined with the direct effect and supremacy of EU law, has at times acted as a check on government action: a check which the sub-committee says will be lost on Brexit. The consequence will be that the rights of individuals will be weakened.

Judicial cooperation

The UK’s position - as far as civil judicial cooperation with other countries is concerned - will be at best diluted and at worse significantly weakened depending on whether a deal is eventually ratified by parliament. The government has set out the position if the UK leaves without a deal, ie, there would be no agreed EU framework for ongoing civil judicial cooperation between the UK and EU countries, and the UK’s status will be as a ‘third country’; so, UK citizens, businesses and families would no longer benefit from those rules.

As a result of this loss of reciprocity, the UK would repeal most of the existing civil judicial cooperation rules, including the following:

• Brussels Ia, ie, Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;
• Regulation (EC) No 805/2004 creating a European enforcement order for uncontested claims;
• Regulation (EC) No 861/2007 establishing a European small claims procedure; and Regulation (EC) No 1896/2006 creating a European order for payment procedure.

The UK would then revert to existing domestic rules which are already applied in relation to non-EU countries. In certain areas, some elements of existing EU rules will be retained, that is, where they do not rely on reciprocity to operate or where currently they form the basis for the UK’s existing domestic or international rules. This means in the case of cross-border disputes, the parties will have to consider the effect of such changes on any existing or future cases involving parties in EU countries.

The government says that existing international agreements, such as the Hague Conventions, will continue and the Rome I and Rome II rules on applicable law in contractual and noncontractual matters will also be retained (in general, these do not rely on reciprocity to operate).

Cases which are ongoing on Brexit day will, for the most part, continue under the existing rules. However, the government warns that it cannot guarantee that the EU courts will follow the same principle, or that they will accept or recognise any judgments in those cases.

Family law

As mentioned above, the Justice Committee is concerned about judicial cooperation in the context of family law. At the moment, the Brussels IIa Regulation, ie, Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, considers cross-border matrimonial matters and cross-border parental responsibility issues, such as rights of custody and access, and supplements the Hague Convention on international child abduction. Council Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the maintenance regulation) is another key piece of EU family law legislation and covers disputes about family maintenance obligations.

Both regulations provide important jurisdictional certainty in children and divorce cases. The status of these EU regulations in the UK after Brexit remains unclear, so many families and marriages where the partners are from different member states could be affected.

Disability, equality and human rights. What does a post-Brexit UK look like for people with disabilities?

Despite the protections under the Equality Act (EqA) 2010 (which will remain in force), there are concerns. According to a House of Lords Library Briefing, Brexit could lead to negative outcomes for people with disabilities through weakened legislative protections, lack of recourse to the CJEU, and the

UK no longer taking part in EU programmes providing funding for projects for disabled people. However, the government has said that it does not intend to weaken disabled people’s rights or to make changes to existing legislation governing rights for disabled people; in addition, it will preserve funding for existing projects. But individuals will not have access to the CJEU, and UK courts will no longer be able to disapply law found by the CJEU to be incompatible with EU equality law.

The Women and Equalities Select Committee has recommended that the government brings forward legislation requiring future legislation to be compatible with the EqA. The committee has also encouraged the government to better protect rights after Brexit by, most notably, introducing an amendment to the EqA giving parliament and the courts power to declare whether legislation is compatible with UK principles of equality, comparable to similar provisions in the Human Rights Act 1998, and to include a clause in what was then called the Great Repeal Bill specifically committing to maintaining the current levels of equality protection when EU law is transposed into UK law.

What about the matter of human rights?

The government’s stated intention is to reconsider the UK’s human rights legal framework once the process of leaving the EU is concluded; nonetheless, concerns about the immediate human rights implications have been expressed. The Joint Committee on Human Rights, for instance, has warned that Brexit will have a significant impact on the UK’s human rights legal framework and urged the government to address issue of residence rights urgently.

The intense concerns about residency rights has resulted in the EU Settlement Scheme. This has now been implemented, with the aim of safeguarding the rights of EU citizens who have lived in the UK for at least five years. However, the Human Rights Select Committee has now warned that the Immigration Bill - in its present form - will remove the rights of Europeans living in the UK.

The report says that the bill removes all EU free movement of persons rights, without addressing the rights of those who currently benefit from EU free movement of persons rights under EU law such as social security rights. This will leave some individuals in a precarious position, though the committee accepts that this is not the government’s intention. It calls for steps to be taken to ensure that, for example, vulnerable groups are made aware of their rights and are helped to access their rights under the EU Settlement Scheme.

As for trade agreements (the EU having included human rights clauses in trade agreements for years) there will be implications if the UK has to negotiate and enter into trade agreements with other states. In that scenario, the Joint Committee on Human Rights says the government should, at the very least, ensure that the standards included in current agreements are maintained.

Data protection

In a world where moving digital data easily is essential to most businesses, data protection is a key issue both inside and outside the EU. As the UK leaves the EU, it will also leave the EU’s legal framework for moving data between the UK and the EU.

The Exiting the European Union Select Committee has stressed the importance of the need for the UK to ensure that data flows can continue uninterrupted between the UK and the EU, for the benefit of both businesses and consumers. Under the political declaration, the European Commission would assess UK data protection standards on the basis of the EU’s adequacy framework, with the aim of adopting an ‘adequacy’ decision by the end of 2020. In the absence of a deal, the EU says that it will not adopt an adequacy decision until the UK is a third country.

Meanwhile, the government has issued detailed guidance on how the UK’s data protection law will work in practice in a no-deal Brexit. The responsibilities of data controllers across the UK, for instance, will remain unchanged, and data subjects will still be protected as they are now. The government says that it will pass various regulations, including preserving standards under Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC (‘the General Data Protection Regulation’) in domestic law; transitionally recognise all EEA countries (including EU member states) and Gibraltar as ‘adequate’ to allow data flows from the UK to Europe to continue; and maintain the extraterritorial scope of the UK data protection framework. The government’s stated aim is to make the necessary amendments and new legislation ahead of exit day.

Conclusion

It is universally and unequivocally accepted that there is need for legal certainty so that businesses, families and individuals can adapt to a new post-Brexit society. As CILEx argued in its written submission to the APPG on Legal and Constitutional Affairs: ‘at the point of exit and in the process of any prospective transition period, there should be absolute clarity as to what law is in effect.’

Whether or not a no-deal scenario will be avoided is still unclear, and practitioners remain without clarity about how the final Brexit will, in practical terms, impact the UK’s laws. For now, practitioners would benefit from a range of detailed government guidance on issues that are likely to arise in their legal practice, in view of the legislative and procedural changes that will bite eventually.