Brexit: a justice treaty and red lines

The English Bar has come up with an interesting Brexit idea.

Given the likely increase in acrimony over the coming months, with tit-for-tat negotiations between the UK and the EU, there is a chance that the interests of justice will be overlooked or compromised in an economic deal. So, the Bar suggests that there should be a separate track for justice matters in the negotiations, with the aim of a separate UK-EU treaty on justice issues, regardless of the outcome of the future economic relationship.

Justice in this case means areas of civil justice cooperation, such as enforcement of judgements, service of process, taking of evidence, family law, dispute resolution, insolvency and road traffic accidents.

There is much to be said for this approach. As the Bar points out, justice is not the same as economy, for a number of reasons. First, the justice measures undertaken by the EU so far have been achieved on the basis of mutual recognition of each other’s laws, mostly without attempt at harmonisation of national laws. In the areas covered by justice legislation at EU level – such as mentioned above concerning family law, personal injury in road traffic accidents or recovery of small debts – it is extremely unlikely that a future UK government would be tempted down a deregulatory route for justice issues, reducing the protections that exist. As a result, there is no reason why mutual recognition of each other’s laws in these areas should not continue after Brexit.

Second, justice plays a different role in society to the economy. It provides access to rights, and is part of the rule of law. The UK and the EU might well have a spat over their economic future, but that is no reason at the same time to endanger the rights of citizens on both sides of the divide, when involved, say, in a family dispute. It is not part of the customs agreement or single market, where understandable arguments will break out.

The area of security and justice, as it is known, has always been treated separately from the economic issues within the EU, and there are therefore good reasons to treat it separately in the Brexit negotiations. For all these reasons, the Bar has a good point, and this might save justice from being traded away against something else.

The major stumbling block, as always, are the government’s red lines, even though we know that they have become pinker and more blurry. Chief of the government’s red lines is the role of the Court of Justice of the European Union (CJEU), since it is inconceivable that the EU would yield up the role of the CJEU in deciding justice matters. Would our government be ready on its side to concede, in a separate justice treaty, that the CJEU should maintain its role for these issues?

Interestingly, both the Law Society and the Bar have come up against the same stumbling block – the role of the CJEU - in their separate approaches to Brexit. The Bar’s problem is explained above. The Law Society is rightly concerned primarily about the practice rights of solicitors in the EU, which is not such an issue for barristers, and is not listed as falling within the separate justice treaty anyway, presumably because they constitute an economic issue, currently provided for under the single market.

When dealing with the issue of practice rights, the Law Society has already pointed out that a customs union – even supposing that our government would agree to one – does nothing for solicitors’ practice rights, because a customs union deals with goods not services.

But a free trade agreement (FTA), as I have explained before, is not likely to do much, either. The previous FTAs negotiated by the EU have mostly not mentioned legal services, and where they are mentioned, as in the one with Korea, the rights are extremely limited compared to what solicitors currently enjoy in the EU. The Canadian model, often cited, is the equivalent of having no deal on legal services, as the Law Society has also already pointed out.

So the Law Society is inexorably driven to asking for the current system to continue in some way, but without resolving the problem of the red lines - not only regarding the role of the CJEU, as with the Bar’s model, but also here on free movement of persons, another of the pillars of the single market.

The time is approaching when the Bar and the Law Society will have to be bolder with the detail underlying their demands. They have so far refrained from focusing on the consequences of the red lines, for fear of upsetting the government. But neither of the professional bodies’ current demands can be achieved without the red lines being crossed.