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  4. Government publishes five Brexit papers including the civil justice co-operation paper

Government publishes five Brexit papers including the civil justice co-operation paper

31 August 2017

Last week the UK Government published five papers detailing its position on Brexit. These papers include provisions which may have an impact on the legal profession or the justice system. 

The papers published:


The Government's paper on cross-border civil judicial co-operation is of particular relevance to the Law Society.  We have been taking forward significant work on Brexit and civil justice cooperation for the past year.  We held an extensive programme of engagement with ministers, parliamentarians and officials making representations on the priorities for the profession and the justice system as well as our work as a participant in the Lord Chancellor and Lord Chief Justice's Brexit Law Committee.

All of the Law Society's major asks on civil justice co-operation were adopted and a significant amount of our messaging was reflected in the Government's paper. The Government stated that it will seek to maintain as close and comprehensive cross-border civil judicial cooperation, on a reciprocal basis, as possible. It also contained a clear statement of intention to maintain within the Hague Conventions and Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This is a real win for the legal profession - read our reaction to the paper.

In other news the Shadow Secretary of State for Exiting the EU, Sir Keir Starmer QC MP, also gave further details about Labour's position on transitional arrangements by backing continued membership of the EU single market beyond March 2019.

This week the UK Government and EU Commission will undertake their third round of negotiations. The House of Commons and House of Lords will both return on Tuesday 5 September.

Monday 21 August

UK Government

Government position on availability of goods

The Government set out its proposals for the regulation of goods to ensure their availability at the date of withdrawal and to support the move to a future relationship.

The goods paper specifically notes "the UK will continue to engage with businesses and consumer organisations to understand more about their concerns, and notes that there are issues in relation to services as well as in relation to goods."

The paper details that the UK is seeking an agreement with the EU which allows the freest and most frictionless trade possible in goods and services. The UK Government notes that continued deep and integrated trade is mutually beneficial to both the UK and the EU, and that the European Union (Withdrawal) Bill will convert existing EU law into UK law to provide a power to make corrections to the law, which will ensure that rules such as common standards can continue to function.

It is the UK's priority to provide legal certainty and avoid disruption for business and consumers with respect to the continued availability of goods in the EU and the UK, and to achieve this the UK has proposed four principles:

  • Ensure the continued availability of products on EU and UK markets at the date of withdrawal. Goods placed on the Single Market before exit should continue to circulate freely in the UK and the EU, without additional requirements or restrictions.
  • Avoid unnecessary duplication of activities and provide legal certainty. Where businesses have undertaken compliance activities prior to exit, they should not be required to duplicate these activities in order to place goods on the UK and the EU market after exit. This includes recognising the validity of type approvals, certificates and registrations issued prior to exit.
  • Ensure that goods in circulation continue to comply with product legislation, and market surveillance authorities can ensure the necessary action is taken with respect to non-compliant products, the agreement should facilitate the continued oversight of goods.
  • Where goods are supplied with services, there should be no restriction to the provision of these services that could undermine the agreement on goods.

Government position on confidentiality and access to documents

The Government has published a position paper on confidentiality and access to documents, relating to information obtained by the UK and the EU whilst the UK was a member state.

The UK have stated that there are three general principles on confidentiality and access to documents. These are:

  1. The UK recognises the importance of continuing to respect obligations of confidentiality and to protect information exchanged while it was a Member State.
  2. The UK considers that arrangements agreed with respect to confidentiality and the handling of information produced while it was a Member State should be reciprocal, affording an equivalent level of protection to the UK and the EU after the UK's withdrawal.
  3. These protections should be equivalent to those set out in the existing regimes.

Tuesday 22 August  

UK Government

Government position on civil justice co-operation

The Government has published its paper on civil justice co-operation with the Law Society specifically mentioned and our 2015 report on EU and the legal sector referenced.

The Government paper states "The UK Government has consulted a range of bodies with interest and expertise in this area, such as the Law Society of England and Wales and the Bar Council."

The key points from the paper are:

  • New civil justice agreement - The UK will 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.
  • Rome I and Rome II - As we legislate for our withdrawal from the EU, it is also the Government's intention to incorporate into domestic law the Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters.
  • Hague Convention - The Government intends to continue to be a leading member in the Hague Conference and to participate in those Hague Conventions to which we are already a party and those which we currently participate in by virtue of our membership of the EU.
  • Lugano Convention – The Government will seek to continue to participate in the Lugano Convention that, by virtue of our membership of the EU, forms the basis for the UK's civil judicial cooperation with Norway, Iceland and Switzerland.
  • Interim arrangements – The Government aims for a smooth transition in civil justice cooperation. The Government stated that the UK and the EU would benefit from an interim period that allowed for a smooth and orderly move from our current relationship to our future partnership.
  • Court of Justice of the European Union (CJEU) - Leaving the EU will therefore bring an end to the direct jurisdiction of the CJEU in the UK, because the CJEU derives its jurisdiction and authority from the EU Treaties. Ending the direct jurisdiction of the CJEU in the UK will not weaken the rights of individuals, nor call into question the UK's commitment to complying with its obligations under international agreements; where appropriate, the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU.
  • Brussels I and II – Whilst the Government does not specifically state it will seek to be part of Brussels I and Brussels II, it implies that it will see to be as close as possible to the current arrangement. 

Specifically in response to the EU's position paper on civil justice and commercial matters (July 2017), the UK Government stated:

  • Applicable law - The existing EU rules governing the applicable law for contractual and non-contractual obligations should continue to apply to contracts concluded before the withdrawal date, and in respect of non-contractual liability, to events giving rise to damage which occur before withdrawal date.
  • Jurisdiction - The existing EU rules governing jurisdiction to determine disputes should continue to apply to all legal proceedings instituted before withdrawal date.
  • Choice of court - Where a choice of court has been made prior to withdrawal date the existing EU rules should continue to apply to establishment of jurisdiction, and recognition and enforcement of any resulting judicial decision, where a dispute arises to which such a choice applies, whether before or after withdrawal date.
  • Recognition and enforcement of judicial decisions - The existing EU rules governing recognition and enforcement of judicial decisions should continue to apply to judicial decisions given before the withdrawal date, and to judicial decisions given after the withdrawal date in proceedings which were instituted before that date.
  • Judicial cooperation procedures and requests for information - Judicial cooperation procedures and requests for information within the European Judicial Network in civil and commercial matters which are pending on the date of withdrawal should continue to be governed by the existing EU rules. The UK agrees that there is a need to identify the appropriate procedural stage that has to have been reached for the procedure to continue in accordance with those rules.

Read the Law Society's press release on the position paper. Vice President Christina Blacklaws was on BBC News to discuss the announcement and this led to further coverage in the Express.

Wednesday 23 August

UK Government

Government position on enforcement and dispute resolution

The UK Government published its 'future partnership paper' covering enforcement and dispute resolution. The paper states that there are currently no precedents for the CJEU to act as the means of enforcing an international agreement between the EU and one or more third countries. The paper sets out several alternative models to the CJEU as the future final arbiter between the UK and the EU. However it does not set an outright position to be assumed in the UK-EU negotiations.

The enforcement and dispute resolution paper reiterated the Government's commitmenttobring an end to the direct jurisdiction of the CJEU. In designing the future partnership, the UK's aims are to:

  • Maximise certainty for individuals and businesses;
  • Ensure that they can effectively enforce their rights in a timely way;
  • Respect the autonomy of EU law and UK legal systems while taking control of our own laws;
  • Continue to respect our international obligations.

The paper states that the UK will be bound by the agreements with the EU as a matter of international law, and will be subject to whatever international enforcement mechanisms the agreements contain. If the UK needs to take steps in its domestic law in order to give effect to those obligations, the UK will do so. The domestic implementation of such agreements will therefore be set out in clear and binding domestic legislation, and be capable of scrutiny by the EU and third countries.

It sets out that there are a number of scenarios which might result in a dispute arising between the UK and the EU:

  • Implementation - one party considers that the other has not appropriately or properly implemented the agreement, for example in domestic law.
  • Subsequent actions - one party considers subsequent legislation or executive actions or decisions of the other party to be incompatible with the obligations under the agreement.
  • Divergence - the way in which the agreement, or implementing legislation, is interpreted by the parties' respective courts, or other bodies or agencies, has diverged in areas where the parties had agreed to seek to avoid divergence.

The UK Government's paper lays out existing models and approaches to provide context for the mechanisms for resolving disputes between the UK and the EU. These are:

  1. Joint committee - These tend to involve nomination or participation in equal number by both parties at a Governmental or diplomatic level. Committees comprised of representatives from both parties are frequently established as part of free trade agreements, such as in the EEA agreement and the North American Free Trade Agreement (NAFTA).
  1. Arbitration models - In addition to joint committees, many international agreements, particularly those focused on trade and economic cooperation, feature arbitration models as a stage of dispute resolution. These include a number of free trade agreements to which the EU is a party, such as Comprehensive and Economic Trade Agreement with Canada and the EU-Vietnam free trade agreement.
  1. Reporting and monitoring requirements - A reporting or monitoring clause is a provision which requires or enables a party to the agreement or a body created by the agreement to evaluate the implementation of that agreement. The purpose of such a clause would be to enable both parties to the agreement, or a body created by the agreement, to evaluate the ways in which domestic legislation or processes are compatible with the agreement, or monitor the progress in domestic implementation of the agreement.
  1. Reference to pre-agreement CJEU decisions - Where agreements between the EU and third countries replicate language which is identical in substance to EU law, it may be agreed that those terms should be interpreted and applied in line with any relevant interpretations of the CJEU which preceded the agreement.
  1. Reference to post-agreement CJEU decisions - In agreements between the EU and third countries, where cooperation is facilitated through replicating language which is identical in substance to EU law, these agreements can specify that account is to be taken of CJEU decisions when interpreting those concepts.
  1. Supervision and monitoring - Overseeing the proper functioning of the agreement is usually undertaken jointly by both parties or in some instances independent bodies are established to fulfil this function.
  1. Provision for voluntary references to CJEU for interpretation - In agreements which utilise concepts of EU law, and in which some means of reaching a binding interpretation of those concepts is sought, an approach which has been adopted is a reference for an interpretation to the CJEU. The result of such a reference would be a binding determination of the meaning of substantive EU law.

Thursday 24 August

UK Government

Government position on exchange and protection of personal data

The UK Government has published a position paper on the exchange and protection of personal data. The paper mirrors the plans already set out by the Government in its Statement of Intent ahead of the upcoming Data Protection Bill. Given this, the paper reconfirms the Government's ambition to ensure that the UK's data regime, both now and in the future, maintains maximum adequacy with the EU following Brexit.

The main proposals is the creation of a new UK-EU data relationship in which the EU recognises that the UK is compliant with EU data protection laws and wider global data protection standards, while also acknowledging that the UK will introduce a Data Protection Bill which will implement the incoming EU General Data Protection Regulation (GDPR) and Data Protection Directive (DPD).

Underpinning this model, the Government is seeking close regulatory co-operation and mutual recognition with the EU. To achieve this the Government is proposing to:

  • Preserve the UK Information Commissioner's role in ongoing and future EU regulatory fora, including on areas of policy development and rule enforcement;
  • Agree a negotiating timeline for longer-term data arrangements in order to assuage business uncertainty and concerns regarding future cross-border access;
  • Work with third countries, who rely on cross-border access into EU data regimes, to ensure that UK businesses can continue to enjoy transfers with countries inside and outside the EU.

The paper also notes that sharing personal data is also essential for wider cooperation that helps in the fight against serious crime and terrorism. The Government says the sharing of personal data is crucial to the EU's ongoing work across the continent to protect citizens, in which the UK plays an integral role.

Sunday 27 August


Labour clarifies position on transitional arrangements

In the Observer, Shadow Secretary of State for Exiting the EU, Sir Keir Starmer QC MP, provided details on Labour's position on transitional arrangements. Sir Keir said that Labour would seek a transitional deal where the UK remains in the customs union and single market and abides by the common rules in both.

Sir Keir states that this approach acknowledges that bespoke transitional arrangements are "highly unlikely to be negotiated, agreed and established in the next 18 months", provides businesses with "maximum certainty", provides more time to resolve the Northern Ireland border and enables negotiations to focus on the new UK-EU trade deal. 

On the length of the transitional arrangements, Labour says they would be as "short as possible, but as long as is necessary."

Sir Keir said the arrangement would not provide a durable or acceptable long term settlement as effective management of migration would need to be recognised in the final deal.

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