THE FUTURE OF LEGISLATIVE DIALOGUE IN EUROPE - Church House, Westminster, 23rd April 2018 - JUSTICE AND SECURITY

 

Chairman, many thanks for giving me this opportunity to make a contribution to the ongoing debate about the future of our relations with the EU.  In this time of Brexit, one of the most dangerous assumptions any of us can make is that the world will stand still as Britain works out its new future relationship with Europe.  The swirl of political, commercial, cultural and social change continues unabated.  As the EU negotiates with us, they continue to deal with a host of other issues, from law and justice issues in Romania, to democracy issues in Hungary right through to the Catalonian crisis and the challenge posed by Russia.  Important though it is, Brexit is not the only game in town, either for us or for the EU. 

 

Another easy but dangerous assumption is that, once phase three is finalised, that is it for the foreseeable future when it comes to the need for dialogue between Britain and our former EU partners.  I believe that the opposite is the truth, namely that this will be the start of a new phase where, although the mechanisms may be very different from the past forty-five years, the issues will be the same as they are now.  How do we make our continent safer and more secure from attacks by state and non-state actors?  How do we ensure the prosperity of our citizens?  How do we promote and protect the values of freedom under the law that underpin our societies?   Post March 2019, the need for legal diplomacy will be even greater than it is today, given the fact that we will no longer have a seat at the EU table, not just in the European Parliament and its committees, but at the Council of Ministers. 

 

What do I mean by legal diplomacy?  Firstly, the need for the UK to make it clear what our values are.  They must place the Rule of Law at the heart of our approach, together with support for the international rules-based system.  This is precisely what we have stood up for after Salisbury and what we have demonstrated by our involvement in Syria last week.   Can I just say that, far from the misleading caricatures peddled by Russia and their witting or unwitting agents, our approach to both issues was “by the book”. We did not rush to judgment.  We sought the support of the international community for our position, with some success.  On Salisbury, we readily co-operated with the Organisation for the Prevention of Chemical Weapons.  By our actions, Britain has eloquently and clearly stated our adherence to the Rule of Law.  We should be proud of that.

We see practical examples of legal diplomacy at work in both Brussels and at the Council of Europe in Strasbourg, thanks to our MEPs and MP delegates.  The judiciary, too, have played their part by engaging with judicial colleagues at the European Court of Human Rights and helping them to understand the context within which the UK courts operate.  Contrary to the fashionable view about the ECtHR, we have seen a distinct reduction in the type of case that really encroached upon the margin of appreciation, whether it was the treatment of Abu Qatada, votes for prisoners or the imposition of whole life tariffs for murder by the Courts of England and Wales.

 

In short, the need for continued legal diplomacy by all of us – politicians, lawyers, diplomats -  is clear.  Not only is it good for our reputation, it is also good for business.   A nation which conspicuously espouses the centrality of law is a nation that is safe to invest in, and a nation that is safe to live and work in.  The robust independence of our judiciary and our legal profession make the UK a fair place for disputes to be resolved.  Recourse to English law as the law of choice for many international contracts is a reflection of our reputation for fairness.  Around 40% of global commercial arbitrations are governed by English Law.  These are values that predate our EU membership, and which will most definitely outlast it.

 

Much is being made at the moment of the revelations from the “Secret Barrister” in their book, which I have just read.  I have to say that little if any of it came as a surprise to me after nearly twenty years as a criminal legal aid barrister, litigating daily in our Crown and Appellate Courts.  Towards the close of the book, the anonymous legal author, who seems to me to have had training or experience in journalism, writes: “there is much that is fundamentally good about our justice system.  The underlying principles, accidental and incoherent though their evolution may have been, have been exported around the globe for good reason: the presumption of innocence and burden of proof, the right to a fair trial, the right to independent legal representation, equality of arms, an independent judiciary, non-partisan tribunals of fact and the other fiercely debated, non-exhaustive aspects of the rule of law on which our present settlement is premised, all stand as self-evidently necessary to our instinctual conceptions of justice”.  Not a bad start for telling the world what we are about, I suggest.

 

One of the underpinning principles of the rule of law is legal certainty, so as we leave the EU, it is essential that we continue to provide legal certainty for businesses, families, and individuals. That’s why the Prime Minister set out in her Mansion House speech the need for a future deal with the EU to cover co-operation Civil and Family justice matters.

 

This is in both the UK and the EU’s interests. Cross-border commerce, trade and family relationships will continue long after we have left the EU. Where disputes arise, these will still need to be settled.

 

Cooperation on the civil judicial mechanisms and procedures which underpin family and business relationships is essential. The best way to deliver that is through a close and comprehensive agreement between the UK and EU,that sets out coherent common rules.

Our Providing a cross-border civil judicial cooperation framework – a future partnership paper (August 2017) position paper made clear the Government’s intention to seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework, a position reiterated by the PM in her Mansion House speech. The Government also signalled its intention to continue to participate in international civil judicial cooperation agreements, such as the Lugano Convention 2007, after the UK leaves the EU.

 

Civil judicial cooperation is a framework that provides cross-border rules setting out which country’s courts will hear a civil, commercial or family law case (jurisdiction); which law will be used (applicable law); and enables a judgment obtained in one country to be recognised and enforced in another (recognition). Various international agreements exist providing a basic level of cooperation between participating countries, but the EU’s civil judicial cooperation framework provides a significantly more advanced and comprehensive system between its Member States.

 

Civil judicial cooperation has mutual benefits for both the UK and the EU by providing certainty and protection for both UK and EU citizens and businesses. It provides a means for effective resolution of cross-border disputes, underpins trade, enables the enforcement of consumer rights in a consumer’s home country and contributes significantly to the UK’s global predominance in the legal and financial services sectors. Clear and efficient rules lead to predictable interpretation and outcomes which provides businesses with the confidence to trade internationally and are key to the strength and international attractiveness of UK courts and law. The obligations for enforcement, recognition and jurisdiction in the EU’s framework are reciprocal - they apply equally between Member States.

 

Key components of current civil judicial cooperation with the EU are:

The Brussels Ia (aka ‘recast’) Regulation is the major component in the ‘Brussels Regime’ and contains a broad and exhaustive set of rules on jurisdiction (which is about which country’s court(s) should hear a case) and enables the mutual recognition and enforcement of judgments between EU Member States.

The Brussels IIa Regulation covers jurisdictional rules in matrimonial and parental responsibility matters and the recognition and enforcement of judgments.

The Lugano Convention, which extends the earlier Brussels I Regulation (not the later, recast version, which is an improvement on the original Brussels I Regulation) between the EU and EEA. It does not include the improvements which have been included in Brussels Ia, but does provide for reciprocal arrangements with the three additional states of the EEA.

 

Other EU instruments include the Insolvency Regulation, dealing specifically with cross-border insolvency cases; the Maintenance Regulation, which provides rules on jurisdiction and recognition and enforcement of maintenance decisions; the Rome I and II Regulations, which determine which state’s law would apply to a case: Rome I Regulation (593/2008) covers applicable law in contracts; Rome II Regulation (864/2007) covers applicable law in non-contractual obligations.; and the Taking of Evidence and Service Regulations which govern procedural matters.

 

Taking a slightly more detailed look, the Insolvency Regulation (1346/2000 and 2015/848) covers jurisdictional rules and applicable law and recognition of insolvency proceedings in cross-border insolvencies. The Small Claims (861/2007 revised by 2015/2421), Enforcement Order (805/2004) and Order for Payment (1896/2006) Regulations facilitate means for obtaining decisions on claims that can be enforced throughout the EU.

 

The Maintenance Regulation (4/2009) covers rules for determining which court has jurisdiction for, and the recognition and enforcement of, maintenance decisions.  Regulation on protection measures in civil matters (606/2013) covers recognition and enforcement of protection measures, including for victims of domestic violence. The EU Service Regulation (2007/1393/EC) covers rules for serving documents in other EU countries. The Taking of Evidence Regulation (2001/1206) covers cross-border processing of requests to take evidence. The Legal Aid Directive (2002/8) covers rules for the grant of legal aid in cross-border disputes. The Mediation Directive (2008/52) covers access to alternative dispute resolution and settlement of disputes through the use of mediation in cross-border disputes. The European Judicial Network in Civil and Commercial Matters (2001/470/EC) facilitates cross-border cooperation for judges and practitioners and access to justice for those involved in disputes.

 

I wanted to run through the details of these regulations to highlight the practical importance to our rule of law that their maintenance will support.  I believe that Brexit need not affect the course of further judicial and legal co-operation, albeit with a new framework architecture, consistent with our status as a Third Country.

SECURITY

The Prime Minister set out the UK’s unconditional commitment to European security. We want to continue to cooperate with the EU on all aspects of our security relationship from foreign and defence policy, to law enforcement and criminal judicial cooperation.

 

We have a deep and historic shared commitment in Europe to peace, democracy, freedom and the rule of law. Promoting our shared values and tackling our shared threats remain a priority for the UK.

 

The UK and EU need to be able to work together to respond quickly and effectively to the changing threats we face from terrorism, serious and organised crime, and other new and developing threats such as cyber crime. The UK also remains committed to using our assets, capabilities and global influence alongside our European partners in support of our common goals and interests. It is important that we can do this as part of the future relationship.

 

We wish to develop a new partnership with the EU which builds on the breadth and depth of those shared interests and values, and thus goes beyond any existing third country arrangements. This must be a partnership that underpins practical collaboration to tackle real world challenges both within Europe and beyond.

 

The threats we collectively face are borderless and constantly evolving. Their scale and complexity requires a new, dynamic future relationship that would allow us to continue and strengthen our close collaboration on security, law enforcement and criminal justice.

 

The UK has been a leading contributor to the development, at an EU level, of practical, effective measures to strengthen information-sharing and cooperation.

 

These in turn improve the ability of operational partners to prevent crimes from taking place, prosecute those who have committed offences, administer justice following offences, deport foreign criminals and terrorists, or stop them coming to the EU in the first place.

 

It is important for Member States to support the Article 50 team to fully understand the operational and technical complexities involved in our cooperation when writing the guidelines and in negotiating the end state.

 

We have proposed a new treaty with the EU on security, law enforcement and criminal justice. We think this treaty is the best way of ensuring ongoing collaboration and cooperation on key legislative tools and instruments.

 

To keep our people safe, and to safeguard our common interests, it is essential that the quality of UK-EU cooperation on external action is maintained. Our cooperation in this space is not vital just because of the common threats we face, but also because we share the same values: peace, democracy, human rights, and the rule of law.

 

The UK is a departing Member State, but it is not one which wants to cut ties with its European allies. Instead, we want to agree with the EU a strategic partnership, facilitating close cooperation in foreign policy, defence and development, and which builds upon the breadth and depth of these shared values.

 

This means that the UK wants an agreement which facilitates partnership in three areas: meaningful discussion and consultation on foreign policy and defence issues, as well as on the existential threats we all face such as climate change and poverty; coordination where it is more effective to continue to work side by side e.g. imposing sanctions or on development assistance to ensure the maximum possible impact and efficiency; and cooperation in areas such as EU missions and capability development where more formal agreements will be required should we continue to commit our assets and expertise.

 

We envisage the partnership on foreign policy, defence and development will take the form of a range of agreements, facilitating both informal and more formal, technical collaboration.

 

We appreciate that reaching the agreement we seek will require flexibility and creativity on both sides, reflecting the fact that there is no precedent for this unique situation. There is currently no framework for enhanced partnerships with the EU.

 

As we design the Implementation Period, and indeed the future relationship on external action, we must focus our attention closely on the outcomes that we want to achieve together, rather than force ourselves to be restricted by pre-existing models for third countries that could hinder our ability to tackle shared challenges together.

I believe that it is the job of the lawyers and the lawyer-politicians like me to focus on the desired outcomes, and to help create the mechanisms by which they can be achieved.  I find that, the further away one is from the detail, the louder the noise in this debate.  For very many of us, me included, the outcome of the referendum was a hard one to take.  Having made that decision, however, it is our duty to move on and to develop systems that reflect a new approach to Europe.  This does not mean that the flame of positive Conservative pro-European politics no longer burns brightly, but as Conservatives, we understand that working with the world as it is, rather than the world as we would like it to be, is what we have to do.  Let us get on with that work.