The common law of England and Wales will not fill the gap in protection left by the UK walking way from three regulations covering cooperation in civil justice, a committee of peers says today. 

A report by the Lords’ European Union Committee states that unless the government acts quickly to duplicate the current system of mutual recognition of judgments, families and small businesses could face real hardship.

The committee’s report, Brexit: justice for families, individuals and businesses? notes evidence by the Law Society that the prospect of uncertainty is already discouraging foreign businesses from naming England and Wales as the jurisdiction of choice in commercial contracts.

The committee, chaired by Baroness Kennedy of the Shaws (Helena Kennedy QC), examines the likely lapse of three regulations when, as promised, the UK leaves the jurisdiction of the Court of Justice of the EU. These are the Brussels I Regulation covering judgments in civil and commercial matters, the Brussels IIa Regulation on enforcement of judgments in matrimonial matters and the so-called Maintenance Regulation covering jurisdiction and cooperation in matters relating to maintenance.

The UK opted in to all three. 

The committee concludes that falling back on common law and earlier international agreements that are less clear, simple or effective, would leave UK citizens with uncertainty and diminished access to justice. It particularly stresses the impact on families and small businesses. 

‘In our view, the loss post-Brexit of the Brussels IIa Regulation and the Maintenance Regulation would be felt most profoundly both by those families that rely on their provisions, for example for the enforcement of judicial decisions, and by our family court system, which witnesses warned would struggle to cope with such radical change.'

On the possibility of relying the common law to resolve disputes, the committee states: ‘The balance of the evidence was overwhelmingly against returning to the common law rules, which have not been applied in the European context for over 30 years. We note that a return to the common law would also not be the government's choice.’

It calls on the government to publish ‘a coherent plan for addressing the post-Brexit application of these three regulations, and to do so as a matter of urgency’. 

Noting the Law Society’s evidence that the current uncertainty surrounding Brexit is already having an impact on the UK’s market for legal services and commercial litigation, the committee concludes that ‘the government urgently needs to address this uncertainty and take steps to mitigate it’.