The UK currently participates in approximately 40 EU measures that aim to support and enhance internal security and police and judicial cooperation in criminal matters. Measures identified as being of particular significance include:
- The European Arrest Warrant (EAW);
- Access to databases, including the Second Generation Schengen Information System (SIS II); European Criminal Records Information Exchange System (ECRIS); Passenger Name Records (PNR); the Prüm Convention – the framework for the exchange of DNA profiles, fingerprints and vehicle registration data; and
- Participation in agencies, including Europol and Eurojust.
The Government initially indicated that it would like future cooperation with the EU on all the EU police and criminal justice measures in which the UK currently participates, suggesting it anticipates a significant operational impact if this cooperation were brought to an abrupt ‘no deal’ end.
15.1 Data protection and exchange
The main elements of the EU’s data protection framework are:
- the General Data Protection Regulation (GDPR)584
- the Police and Criminal Justice Directive (the “Law Enforcement Directive”)585
The GDPR applies to the general processing of citizens’ personal data. The Law Enforcement Directive applies to the processing of personal data for law enforcement purposes.
Under the EU’s data protection framework, personal data can only be transferred to third countries when an “adequate” level of protection is guaranteed. One option is for the European Commission to make an adequacy decision. Other options that data controllers can implement for their own data processing include:
- Binding corporate rules
- Standard contractual clauses
The Government has stressed that it wants to maintain the unhindered flow of data between the UK and the EU after Brexit.586 The Data Protection Act
584 Regulation 2016/679 EU
585 Directive 2016/680/EU
586 See, for example, Matt Hancock (the then Minister for Digital), Oral evidence to the Select Committee on the European Union Home Affairs Sub-Committee, 1 February 2017, p1; PQ 163493 [answered 19 July 2018]
2018 brought the GDPR and the Law Enforcement Directive into UK law. According to the Government, this will “ensure that the UK is prepared for the future after we have left the EU”.
Possible impact of no deal
In a December 2017 report, the House of Lords European Union Committee warned that a complete “no deal” would bring UK-EU cooperation in a number of areas – including data exchange – to a “sudden halt”.588 This would be “deeply damaging for the UK”.589 However, David Davis, the then Secretary of State, told the Committee that in the absence of a full deal, a “bare bones” deal could include an agreement on data sharing.590
Data exchange in the event of no deal
European Commission Communication
A European Commission Communication of 13 November 2018 confirms that in the case of a no-deal scenario, the transfer of personal data to the UK would become subject to the rules on international transfers contained in the GDPR and Law Enforcement Directive (LED). The Communication notes that these contain “appropriate safeguards” – e.g. the Commission’s approved Standard Contractual Clauses, Binding Corporate Rules, administrative arrangements – that can be used by the private sector and public authorities. In addition, even in the absence of appropriate safeguards, the GDPR and LED allow data transfers in certain circumstances e.g. where an individual has given explicit consent, for the performance of a contract, for exercising legal claims, or for important reasons of public interest. Given these options, the Communication states that “the adoption of an adequacy decision is not part of the Commission’s contingency planning”.
UK Government technical notices
On 13 September 2018, the Department for Digital, Culture, Media and Sport (DCMS) published a technical notice on data protection in the event of the UK leaving the EU without a deal.591 Another notice was published on 13 December 2018 setting out how data protection law would work in such a scenario. This explains:
(…) The EU (Withdrawal) Act 2018 (EUWA) retains the GDPR in UK law. The fundamental principles, obligations and rights that organisations and data subjects have become familiar with will stay the same.
To ensure the UK data protection framework continues to operate effectively when the UK is no longer an EU Member State the Government will make appropriate changes to the GDPR and the
587 See, for example, Department for Digital, Culture, Media and Sport, Data Protection Bill Factsheet – Overview, September 2017, p1; PQ 187077 [answered 8 November 2018]; Library Briefing Paper (CBP 8214, 1 March 2018) gives background to the 2018 Act
588 House of Lords European Union Select Committee, Brexit: deal or no deal, HL Paper 46, December 2017, p3
589 Ibid, para 48
590 Ibid, para 34
591 DCMS, Data protection if there’s no Brexit deal, 13 September 2018
Data Protection Act 2018 using regulation-making powers under the EUWA.
The regulations and more detailed guidance will be published in the next few weeks. These regulations would:
Preserve EU GDPR standards 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
Preserve the effect of existing EU adequacy decisions on a transitional basis
Recognise EU Standard Contractual Clauses (SCCs) in UK law and give the ICO the power to issue new clauses
Recognise Binding Corporate Rules (BCRs) authorised before Exit day
Maintain the extraterritorial scope of the UK data protection framework
Oblige non-UK controllers who are subject to the UK data protection framework to appoint representatives in the UK if they are processing UK data on a large scale…592
15.2 Cooperation in law enforcement and criminal justice
Both the UK and the EU have emphasised the importance of maintaining cooperation in the field of security, law enforcement and criminal justice. The Home Secretary told the House of Commons Home Affairs Select Committee (HASC) that security “is something that should not be linked to any of the other discussions”, and that the UK’s proposals are “completely unconditional”.593
More recently, however, the Policing Minister indicated to HASC in November 2018 that any security treaty might be included as part of a wider agreement, including trade arrangements.594
Possible impact of ‘no deal’
On 28 November 2018 the Government published EU Exit: Assessment of the security partnership, providing a comparison of the proposed future security partnership with a no-deal scenario. This set out the assumptions on which its analysis of the impact of ‘no deal’ is based:
- The UK leaves the EU on 29 March without a Withdrawal Agreement or Political Declaration. There will be no transition/ implementation period and no agreement on the future relationship;
- There will be no agreements in place on how to wind down cooperation;
592 DCMS, Amendments to UK data protection law in the event the UK leaves the EU without a deal on 29 March 2019 (may also apply to new exit date on 31 December 2020), 13 December 2018
593 Oral evidence on the work of the Home Secretary, 10 July 2018, Q489
594 Home Office preparations for the UK exiting the EU, Home Affairs Select Committee, Twelfth Report of Session 2017-19, 7 December 2018, para 13
- The UK will not have negotiated any new agreements with the EU or Member States;
- Cooperation will continue on the basis of non-EU international agreements where they exist and where relevant implementing legislation is in force;
- The UK will no longer have access to databases, systems and networks;
- The UK will not participate in or have access to EU agencies, bodies or institutions of the EU;
- Data exchange will be more difficult and carry additional administrative costs.
It states that the absence of an implementation period would “create immediate legal and operational uncertainty with the risk of operational disruption and potential security implications”, and that the Government would seek to mitigate these risks.
The Security Minister, Ben Wallace, added in a speech in November 2018 that a ‘no deal’ scenario in security cooperation would “create immediate and lasting harm to both sides and undermine our ability to work together”. He went on:
If we reach March next year without a deal in place, we will not enter a transition period, and will therefore be locked out of many of the EU security tools that currently help our police, law enforcement and criminal justice partners do their jobs.
Security cooperation would continue but only through non-EU channels, meaning we would be choosing to relinquish the additional operational capabilities that are currently provided by our membership of the EU, and which the transition period and the Future Framework are intended to protect. […]
There will be less information available to our border officers and police forces.
It will take longer to track and arrest criminals and all the time putting at risk the cooperation and sharing that we know to be so vital.595
Representatives from the worlds of law enforcement, criminal justice, and security and intelligence have provided further insight into the possible consequences of the UK losing access to EU measures in this area. Impact centres around three broad themes: loss of operational capacity, loss of strategic influence, and an increased demand on resources resulting from the need to compensate for these losses. The consensus is that a ‘no deal’ scenario would have a significant negative impact on public safety.
Concerns have also been raised about the impact of a loss of cooperation on the security situation in Northern Ireland and around the Irish border (see section 8 of this paper).
Sir Rob Wainwright, former Director of Europol, said in evidence to HASC:
Serious crime today and terrorism today is without doubt a transnational problem and requires that kind of response, of course. That is precisely why the UK, as much as any other member state of
595 Rt Hon Ben Wallace, Brexit security speech, 29 November 2018
the European Union, has invested so much effort over the last three decades in constructing the closest possible, most cohesive and effective cross-border police co-operation arrangements in Europe. It is therefore axiomatic to say that in the face of these threats that are continuing to grow and evolve in that way that any dislocation in that effort, any break-up of that would lead of course to a decrease in the overall effectiveness of all of us to keep all of our citizens safe here in the UK, but across Europe as well. I think therefore that is a well-understood point.
Asked whether there was cause for concern, given the different positions of the UK and the EU in negotiations on future security cooperation, he said that ‘no deal’ would have an adverse effect on Europe’s collective ability to fight crime and terrorism.597
On the specific consequences of ‘no deal’ for the UK, he said:
We would survive as a country, of course. However, without a doubt we suddenly lose access to instruments of very direct and practical operational value to the UK on an everyday basis. That would be quite serious for the ability of our national police authorities to keep us safe.598
Sir Julian King, European Commissioner for the Security Union, expressed a similar view to the Lords EU Home Affairs Sub-Committee
[I]f there is no agreement, we all stand to lose, because we will be less well-equipped to cooperate effectively against these shared threats [terrorism, cyber, and serious and organised crime].599
Members of the Association of Policing and Crime Commissioners’ (PCC) Brexit Working Group wrote to the Home Secretary on 2 August 2018, expressing concerns that a no-deal scenario would lead to a significant loss of operational capacity, which could pose significant risks to communities.600 The letter from Matthew Scott (Kent), Lord William Bach (Leicestershire) and Martyn Underhill (Dorset) stated that “[t]he UK and EU share a common and ever evolving threat picture. We believe that a comprehensive partnership in all areas of policing and security cooperation is of mutual benefit to all”. They continued:
Through discussions with the NCA and NPCC, we understand that considerable additional resource would be required for policing to operate using non-EU tools and that such tools would be sub-optimal – potentially putting operational efficiency and public safety at risk.
It is also recognised that recruitment, vetting, and training of staff to use these tools would take a substantial amount of time.
Should an implementation period not be agreed, contingency plans will need to be implemented by the end of March 2019. Given that the implementation period decision is not likely to be known until
596 Oral evidence: EU policing and security cooperation, HC 1356, 3 July 2018, Q1
597 Ibid, Q32
598 Oral evidence, ibid, Q63
599 Brexit: the proposed UK-EU security treaty, Uncorrected oral evidence, 14 June 2018, Q115
600 The Guardian, No deal Brexit poses serious risk to public safety, say police leaders, 6 August 2018
October 2018, the resultant five-month window is likely to be very challenging. We are therefore concerned that a ‘no deal’ scenario could cause delays and challenges for UK policing and justice agencies.
The Police and Crime Commissioners asserted that the “shared tools, measures, initiatives and capabilities” developed over the years of the UK’s EU membership had “saved many lives”, and that ways had to be found “to protect these mutually important capabilities […] to ensure the safety and security all our citizens”. The PCCs called on Sajid Javid to “[c]onfirm that the Home Office has developed effective contingency plans for a ‘no deal’ scenario”.
In January 2019, Assistant Commissioner Neil Basu described the possibility of a no-deal scenario as “incredibly concerning” and suggested that the UK and the EU would be in a “very bad place” if police could not exchange data or biometrics on suspected criminals.601
The Law Society of England and Wales suggested in written evidence to the Lords EU Committee Home Affairs Sub-Committee that leaving the EU without a deal on security would lead to legal and organisational chaos and create a void which could be exploited by terrorists and criminals.602
The House of Lords EU Home Affairs Sub-Committee concluded in its report Brexit: future UK-EU security and police cooperation, that access to EU law enforcement databases and data-sharing platforms is integral to day-to-day policing, and that loss of access could pose a risk to the safety of the public.603
In a subsequent report, Brexit: the proposed UK-EU Security Treaty, the Committee stated:
Were the UK to lose access to the EU’s security databases, information that today can be retrieved almost instantaneously could take days or weeks to access, creating not only a significant hurdle to effective policing but a threat to public safety.604
These conclusions reflect evidence taken from law enforcement bodies, former members of the security and intelligence agencies, the Crown Prosecution Service (CPS) and the legal profession, among others.
Richard Martin, Deputy Assistant Commissioner of the Metropolitan Police, told the Committee that under current arrangements police officers on the street are able to run checks on a car or person on the police national criminal database and on SIS II simultaneously. He described this ability as “absolutely essential” in order to keep people safe.605 He suggested that
601 Far-right groups could exploit Brexit tensions – police, bbc.co.uk, 23 January 2019
602 Law Society of England and Wales, written evidence
603 Lords EU Committee, Brexit: future UK-EU security and police cooperation, 7th Report, 2016-17, HL Paper 77, para 120
604 HL Paper 164, para 152
605 Lords Home Affairs Sub-Committee, Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q59
without access to these databases, the police would not be able to make as many checks, and the system would be much slower and less efficient. Delays in access to information on suspects could mean that opportunities to prevent crime would be lost. He concluded that a loss of access to databases would mean “[W]e will get a poorer picture, a lot more slowly than we do now, which will affect our operational capability”.
Steve Smart, Director of Intelligence at the National Crime Agency, set out the operational impact at a tactical and strategic level:
At a tactical level, the impact of losing access to those datasets is that more bad people will get into the UK, and it will be harder for us to find and deal with them. At a more strategic level … As an organisation, we are looking to build, on behalf of wider law enforcement, a national data exploitation capability over the next three years. Not being able to link to the data that our European partners hold, the data that sits at Europol and on the Schengen information system, would undoubtedly have a negative impact on what we can do with the data we already have.607
Rob Wainwright told HASC that the UK derives specific and important operational value from all the main databases, including the Europol Information System, SIS II and the Prüm Convention.608 He explained that the ability to quickly circulate information about criminal and terrorist suspects has a direct operational benefit:
The analogy might be that a serious criminal, maybe a sex offender from one member state, would be registered on the Schengen Information System in case, unknown to those authorities in Germany or France, he were to travel around Europe, then were he to arrive at Dover Docks, then the fact that he is on the Schengen Information System would allow our border officials here to identify him as that suspected offender. If those officials do not have access to that common database on which the other authorities have placed his name, then it is pretty obvious what possible detrimental effect that might have on the ability of that border official to make the right decision about letting him in the country.609
These concerns were shared by Lord Evans of Weardale, former Director General of MI5. When asked whether the loss of access to databases could cause problems for the security service, he agreed that it could:
[O]ne of the main ways in which we seek to reduce the risk of harm is by getting criminals locked up who are involved in planning terrorism or whatever. For that, we have to rely on law enforcement agencies because the Security Service has no law enforcement powers. From that point of view, a very important part of the overall counterterrorism efforts in the country is dependent on law
606 Ibid, Q63
607 Ibid, Q63
608 This Convention is often referred to as ‘Schengen III’. It is a treaty signed on 27 May 2005 by Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain. It deals with cross-border cooperation, particularly in combating terrorism and cross-border crime.
609 Oral evidence: Eu policing and security cooperation, HC 1356, 3 July 2018, Q22
enforcement, which in turn is reliant upon international cooperation.
Rob Price, head of the ACRO criminal records office reportedly told the Independent in January 2019 that dangerous criminals could go free in the UK after Brexit if police officers cannot access European conviction records, because British police will be unaware of crimes committed abroad. He said that EU conviction records were critical to decisions on whether to charge or release foreign suspects, and how to protect the public.611
The Government appears to concur with this analysis. Its Assessment of the security partnership paper states that in the event of ‘no deal’, the UK could lose access to information that helps its Border Force Officers and police to detect and prevent security threats, and provides some specific illustrations and examples:
PNR: A routine sniffer dog inspection at a UK airport led to the detection and seizure of a significant amount of cash from an outbound travelling EU national. UK officers analysed that individual’s passenger information to identify a number of individuals with matching travel arrangements. All individuals had used the same EU travel agency to book flights and were put on the UK watchlist as suspected criminal associates. This led directly to three further hits at other UK airports and detection and seizure of another two significant amounts of cash.612
Prüm: The Prüm system automates DNA matching to produce hit results within 15 minutes. This speed of information exchange helps the early stages of an investigation, particularly where forensic evidence is involved, in order to prevent destruction of evidence and identify suspects before they have a chance to commit further crimes or evade justice. UK police forces sent 69 DNA profiles abroad in 2014-15 using Interpol, whereas 9,931 profiles were sent in less than six months during a pilot of the Prüm system.613
SIS II: UK authorities issued a SIS II alert in April 2016, marking the individual as a suspected criminal. Less than three months later, the subject was stopped in Spain driving a motor vehicle which generated a hit on the alert. Spanish authorities conducted discreet checks and passed information back to UK authorities regarding an address and place of work. The real-time information exchange through SIS II meant that this absconder was traced, located, arrested and surrendered to face trial for serious drug offences, all within the space of six months.614
ECRIS: Information available through ECRIS supports the UK’s law enforcement agencies in the effective management of violent and sexual offenders. For example, the UK Criminal Records Office
610 Brexit: the proposed UK-EU security treaty, oral evidence, 16 May 2018, Q97
611 Brexit could see dangerous criminals go free in UK with police unable to access EU conviction records, The Independent, 4 February 2019
612 Para 35
613 Para 36
614 Para 37
(ACRO) was notified in October 2016 that a UK national convicted in Cyprus for possessing indecent images of children was travelling back to the UK. The offence was added to his UK criminal record and ACRO promptly informed his local police force in the UK who were able to take appropriate action.
European Arrest Warrant and other criminal justice cooperation measures
Writing in The Times on 9 August 2018, Ed Davey, Liberal Democrat spokesperson for Home Affairs, suggested that losing access to the European Arrest Warrant (EAW) would mean UK criminals could evade justice in other European countries, and that criminals from elsewhere in the EU would be able to evade justice in the UK.616
In support of this contention, he quoted the then Home Secretary Theresa May in 2014, who described the EAW as “a vital tool for ensuring that justice is done in this country and for keeping the British public safe”, without which the UK risked becoming “a honeypot for all of Europe’s criminals on the run from justice”. Mr Davey cited the example of a case in Ireland, in which an individual sought to resist extradition to the UK to stand trial for murder, arson and rape, on the grounds that he will not be able to rely on EU derived rights after Brexit.617
Debbie Price, Head of International Justice at the CPS, gave evidence to the Lords EU Home Affairs Sub-Committee on the impact of losing access to criminal justice cooperation measures, including the EAW, on prosecuting crime. She highlighted the operational importance of speed in being able to obtain people, evidence and the proceeds of crime, which the current arrangements facilitate. She also raised the issue of legal certainty:
[A] reversion to a different set of instruments will lead to a period of legal uncertainty where things need to be tried and tested in the courts, which takes a lot of resources, time and money from everyone involved.618
She explained that alternative extradition arrangements were slower and more expensive, and that alternatives to the European Investigation Order and Mutual Legal Assistance mechanisms would also be slower. This could lead to a capability gap, for example where someone was on remand awaiting trial, but it was not possible to obtain crucial evidence in time for the trial.
She also noted potential costs to victims and witnesses of having to travel to trials in other countries if extradition was not possible.619
Deputy Assistant Commissioner Richard Martin suggested that criminals may seek to exploit changes to extradition arrangements:
[C]riminal groups are not daft. They may already be thinking that, if certain powers do not exist, there are opportunities for them to
616 Accept the jurisdiction of the ECJ – or criminals will walk our streets, Ed Davey, The Times, 9 August 2018
617 See Court of Justice of the EU, Case C‑327/18 PPU
618 Brexit: the proposed UK-EU security treaty, oral evidence, 16 May 2018, Q104
619 Ibid, Q108
either operate here, knowing it is far harder to be extradited from the country, especially if they are a foreign national, or vice versa.
Rob Wainwright suggested that the loss of the EAW would have an adverse impact on the UK’s overall security arrangements.621
Jim Brisbane, CPS Brexit lead, gave evidence about contingency planning. In the context of the EAW, he explained that there was a need to ensure that the correct processes were in place and that the CPS had the necessary expertise to deal with extradition in a different context. He suggested this would require additional resources because the process would be less streamlined and there would be more legal challenges. However, it was not yet possible to estimate the scale of the additional demand.622
Richard Martin and Steve Smart also discussed the resource implications of losing access to existing measures. Richard Martin said their contingency planning included looking at the impact of losing access to the EAW:
If that is the case, it is much slower and there are a lot more manual linkages. It means that we have to get a warrant for certain things. That means there is an impact on the CPS.
We are now trying to quantify what that means at ground level for local policing and what each organisation will need in order to process things in a different way at a slower rate…. Other things include … what our overseas liaison network looks like. What might our footprint in Europol look like as a third country? How many people do we need? Do we need greater influence? Does that equal more people or are there key countries that we need to be better represented in?623
The Government’s Assessment of the security partnership paper also acknowledges that a ‘no deal’ scenario would mean that extradition procedures would be considerably slower, and that the UK would lose access to a range of practical cooperation measures, including prisoner transfer and joint investigation teams. This would mean that the UK would transfer fewer prisoners to and from EU prisons, which would result in increased capacity and financial pressures on HM Prison and Probation Service, according to the paper.624
The island of Ireland
The Police Service of Northern Ireland (PSNI) provided evidence to the Lords EU Home Affairs Sub-Committee on the impact of losing access to EU measures in the context of cooperation with the Garda in Ireland in relation to the border. PSNI noted the importance of good working relationships, but also emphasised the need for a clear legal framework:
For example, the loss of European Arrest Warrants would impact on the PSNI ability to pursue those who use the land Border to evade prosecution. This will affect Counter Terrorism, Serious/ Organised Crime and Volume Crime. […]
620 Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q67
621 Oral evidence: Eu policing and security cooperation, HC 1356, 3 July 2018 Q56
622 Brexit: the proposed UK-EU security treaty, oral evidence, 16 May 2018, Q106
623 Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q68
624 Assessment of the security partnership, paras 38-42
There is significant interaction and relationships between Organised Crime Groups operating on both sides of the Border and they often work together across a number of types of organised crime. It is likely that organised crime groups will seek to exploit any new arrangements for criminal gain. Many of these groups have links to terrorist activity and the funding of acts of terrorism.625
Robert Hannigan, former Director of GCHQ, suggested that the presence of a physical border on the island of Ireland would be a threat to internal security in itself:
It is hard to see any of the current solutions not resulting in more smuggling, and anyone who has worked there knows that smuggling and crime on the border are corrosive to the peace process because the money tends to go to paramilitary groups, or the rump of paramilitary groups. That is a worry. It is the threat and the criminality that might be affected rather than the cooperation.626
Others have also noted that the loss of the EAW would be felt particularly acutely in the Ireland/ Northern Ireland context. The legal basis for extradition between the UK and the Republic of Ireland under the 1957 Extradition Convention is unclear due to changes to Irish legislation brought about by implementation of the EAW. It is likely that Ireland would need to amend domestic legislation in order to apply the Convention arrangements to the UK.627
In December 2018 the Irish Government published a Brexit Contingency Action Plan. It stated that cooperation in the area of law enforcement with respect to Northern Ireland is at an all-time high, and that the Irish Government is determined that that should be maintained. On the impact of a ‘no deal’ on security it said:
As Britain’s nearest neighbour, Ireland would be seriously impacted by the sudden changes to the arrangements for security co-operation under a no deal scenario.
The British Government has indicated its concern about a range of no deal impacts in this area. These include no agreement on the security aspects of the withdrawal or future relationship with the EU, no access to EU databases or networks, no agreements with EU bodies, no application of EU law, no EU based operational co-operation, no access to data on DNA, fingerprints, vehicles, criminal records, wanted persons or airline passengers, lapsed membership of EUROPOL and EUROJUST, the unavailability of European Arrest Warrants and no access to classified EU information as a third country.
There will also be a need to try to ensure continued EU-UK co-operation on cyber security, civil protection, illegal migration, health security, countering terrorism and violent extremism.
625 Police Service of Northern Ireland, Written submission to the House of Lords EU Sub-Committee on Brexit: the UK-EU Security Treaty, June 2018
626 Brexit: the proposed UK-EU security treaty, oral evidence, 16 May 2018
627 The Policing Minister said in evidence to HASC in November 2018 that no changes were required to Irish law in order for the Convention to apply to UK-Ireland extradition arrangements post-Brexit. This contradicts evidence provided by experts to several other parliamentary Committees.
Needless to say, all of these issues are even more pressing in the context of the island of Ireland.628
Rob Wainwright told the Lords EU Home Affairs Sub-Committee that a change in the UK’s relationship with Europol would be felt mainly in the context of strategic influence. He explained that the UK is currently the lead Member State in a number of important projects in the areas of modern slavery, large-scale fraud and cocaine trafficking, for example. The UK is also currently chair of the counter-terrorist programme board at Europol and has been one of the primary architects in the development of police cooperation systems in the EU.629
Steve Smart and Richard Martin both emphasised the need for the UK to continue to be able to influence the development of law enforcement tools in light of the evolving nature of crime.630 Steve Smart pointed out that the UK was responsible for instigating many of the measures to which law enforcement now hopes to retain access, such as the EAW and PNR. He suggested that as the threat changes, new tools will be needed and “[w]e have to maintain the ability to drive that discussion”.631 If the UK ends up with a radically different relationship with Europol to the one it has now, influencing and shaping Europol’s agenda would be a lot harder.632
As an example of UK influence, Richard Martin said the UK had been successful in persuading Europol to include firearms on its list of priorities:
… which allows them to collect intelligence against that, allows them to develop products, and gets it on to some of the work groups that we need to have. It was our influence that got it on. It was not originally on. Areas such as that would concern me.633
Lord Evans and Robert Hannigan also regarded a change in the UK’s status as detrimental to its ability to influence. Mr Hannigan suggested that while for cultural reasons the UK could still be a bridge between the EU and the Five Eyes countries,634
[T]here is no question that removing ourselves from one of those groups is going to have an impact as we become another member of the Five Eyes that is outside the EU.635
Lord Evans expressed concern that the UK’s absence from the Council of the EU and the European Parliament would mean the loss of a well-informed and influential voice in the formation of policy that impacts on national security:
We will not be there in the same way in future. It was always noticeable that when the Club of Berne [a group comprised of heads
628 Government of Ireland, Preparing for the withdrawal of the united Kingdom from the European Union on 29 March 2019 (may also apply to new exit date on 31 December 2020): Contingency Action Plan, December 2018
629 Brexit: the proposed UK-EU security treaty, oral evidence, 7 March 2018, Q3
630 Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q60
631 Ibid, Q65
632 Ibid, Q66
633 Ibid, Q66
634 The USA, Australia, Canada, New Zealand and the UK
635 Brexit: the proposed UK-EU security treaty, oral evidence, 16 May 2018, Q99
of EU security agencies] would brief the permanent representatives in Europe, which we did periodically, at a quasi-political level, they were always keen to have the British there, because we tended to be better connected in some of those areas and more familiar with some of the policies than some of the smaller countries perhaps were. We were able to be a helpful voice, which will be more difficult going forward. That is an area of vulnerability.
Robert Hannigan agreed, and emphasised the role of the UK in the debate about balancing privacy and security in the context of investigatory powers:
That is an important point on data, in particular. After the referendum one of the concerns that I picked up from counterparts in Europe was that the strongest voice at one end of the spectrum on balancing privacy and security and getting a sensible UK-style balance would be gone. There is a wide spectrum among the member states. Some are at the extreme other end. I know that some of our colleagues worry a lot about the absence of that voice.637
Steve Smart suggested that as the Five Eyes partners look to the UK to put forward their point of view within Europol, a loss of access to Europol would therefore have a negative impact on them as well.638
Could the UK fall back on other mechanisms for international cooperation?
Policing and criminal justice
In some areas there are existing fall-back options, but they are regarded as suboptimal in comparison with EU measures.
The 1957 Council of Europe Convention on Extradition would be the fall-back option for extradition. However, it does not impose time-limits and requests are made through diplomatic rather than judicial channels. There are also more grounds on which extradition can be refused, so this process would be slower,639 more costly and lead to fewer extraditions. Further, since implementation of the EAW, some EU Member States have repealed legislation giving effect to the Convention.
The 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters would provide a fall-back for cooperation in criminal investigations. But this would also be a slower, more bureaucratic process than under existing arrangements, and it has not been ratified by all EU Member States.
The Council of Europe’s 1983 Convention on the Transfer of Sentenced Persons would provide a fall-back option for the transfer of prisoners. However, the Government has noted that this provides extensive grounds for EU Member States to refuse to take prisoners.640
In police cooperation, the UK would have to rely on cooperation through the International Criminal Police Organization (Interpol) and bilateral
638 Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q64
639 According to Camino Mortera, Centre for European Reform, “extradition under the Convention takes almost 20 times longer than it does with the EAW”, Financial Times, 7 September 2018.
640 Assessment of the security partnership, para 42
agreements. Interpol’s capabilities are less developed than those of Europol, and the quantity and quality of data shared via Interpol are regarded as inferior.
DAC Richard Martin explained in evidence to the Lords EU Sub-Committee that law enforcement teams working with the Home Office on contingency planning were looking at using the Interpol database I-24/7. However, he suggested that this would have limitations compared to existing mechanisms:
[The fall-back options] all have limitations compared to what we currently have, but we are mapping through all those processes. What does that look like when it is a bit slower? How does that work for officers on the street, and the NCA officers, when they are doing their roles? …
If there was a cliff edge scenario … we would have these fallbacks ready to use. They would be clunky and they would be slower, but we would still be able to operate in a way around all that.641
Steve Smart added that in some areas there were no obvious fall-back options, and reliance on what was available would make law enforcement agencies less dynamic and less effective:
We will not be able to work at the speed we work now, assuming all things remain the same. There will be a resourcing issue, both for national policing and for the NCA, if we end up with a treaty that does not give us a lot of what we currently have.642
National security is not part of EU law and remains the responsibility of Member States. Some have therefore suggested that the impact of Brexit of any sort in this area will be minimal, because intelligence cooperation can and will continue at an intergovernmental level. Before the EU referendum, Sir Richard Dearlove, former head of the Secret Intelligence Service, suggested that the cost of Brexit to the UK in national security terms would be low, because the practical business of counter-terrorism and counter-espionage is conducted principally through bilateral relationships.643
Andrew Parker, Director General of MI5, seemed to concur in a speech in Berlin to the German domestic intelligence agency BfV in May 2018. He described existing structures for bilateral and multilateral intelligence cooperation in Europe, before concluding:
This highly developed national security collaboration largely takes place outside EU structures, and doesn’t depend on membership. So, at the primary level, Brexit makes no difference to the strength of those partnerships.644
However, he then went on to explain how EU mechanisms contribute to this cooperation:
641 Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q62
643 Richard Dearlove, “Brexit would not damage UK security”, Prospect Magazine, 23 March 2016
644 Director General Andrew Parker Speech to BfV Symposium, 14 May 2018, mi5.gov.uk [accessed 8 August 2018]
But that is not the whole story. National level and multilateral security work between European nations draws strength from a range of important EU systems and arrangements.
Exchanging data through EU law enforcement databases, and Passenger Name Records on the travel of terrorist subjects across Europe provides vital intelligence. Practical cooperation to efficiently arrest and surrender terrorists and criminals using the European Arrest Warrant enables the swift delivery of justice. And our exchanges with EUROPOL and other EU bodies, where the UK is a major contributor, make us all safer.645
A similar point was made by Lord Evans in evidence to the Lords EU Home Affairs Sub-Committee. He said that most cooperation took place bilaterally or multilaterally outside EU measures, but added:
It is important, certainly from MI5’s point of view, that you cannot understand the counterterrorism work of MI5 in isolation from the law enforcement and policing work because we have an extremely interrelated model between the intelligence agencies and the police. The dependence of the law enforcement community on Europol, the European Arrest Warrants, law enforcement cooperation and so on was therefore extremely important to the overall efforts that we made collectively, although MI5 was not itself a member of Europol because we are not a law enforcement agency.646
Robert Hannigan explained that for GCHQ, which does not work directly with law enforcement in the same way, relationships with European counterparts were extremely important, but that cooperation takes place largely outside EU structures:
Over the last five years there has been an extraordinary change in the quality and quantity of sharing with European counterparts, driven partly by terrorism but also by other threats, cyber in particular and Russia. In general, the cooperation is better than ever. One of the things that all the agency heads did after the referendum was to reassure each other that that would continue. The legal basis … is bilateral in most cases. It does not touch on EU structures. Where it is multilateral in signal intelligence and cyber, it is done through a series of bilateral legal frameworks that exist between the SIGNIT agencies of the Five Eyes and a number of European countries both inside and outside the EU.647
Government contingency planning
HASC reported in March 2018 that the National Crime Agency was unwilling to give public evidence on its contingency planning and expressed frustration that as a result, the public debate on this aspect of Brexit has been lacking in detail and urgency.648
The Committee recommended that the Government devote a substantial proportion of its Brexit planning fund to policing and security cooperation, including detailed impact assessments of losing access to existing measures
646 Brexit: the proposed UK-EU security treaty, oral evidence, 16 May 2018, Q94
648 UK-EU security cooperation after Brexit, Home Affairs Committee, Fourth Report of Session 2017-19, HC635, 21 March 2018, para 137
and fully costed plans for contingency arrangements such as UK-based call centres for bilateral cooperation with EU agencies.
In a follow-up inquiry, the Home Secretary told HASC that the Government was preparing contingencies for security arrangements but that they would be “suboptimal” in many areas, providing the example of the 1957 European Convention on Extradition.
HASC concluded that contingency planning in this area had been inadequate and that the Home Office’s Brexit planning budget was largely devoted to the UK’s future immigration system:
It is often said that the primary purpose of any Government is to protect its citizens from violence and harm – yet crucial questions about the UK’s future security relationship with the EU remain unanswered, and the issue continues to be side-lined by public debate about customs, borders and immigration after Brexit. […]
Without urgent action to make progress in these negotiations, and to put workable contingency plans in place for a ‘no deal’ scenario, the safety and security of UK and EU citizens will be put at serious and unnecessary risk.650
In September 2018 the National Police Chiefs’ Council (NPCC) announced the formation of a new national unit to assist police forces to use alternatives if the UK loses access to current measures. The plans would involve UK law enforcement reverting to international police tools through Interpol, bilateral channels and existing Council of Europe conventions.
The NPCC Chair Sara Thornton made the following statement:
Existing EU tools allow us to respond quickly and intelligently to crime and terrorism in the UK and the EU – they make us better at protecting the public. The alternatives we are planning to use, where they exist, are without exception slower, more bureaucratic and ultimately less effective. […]
We have agreed a model that minimises the risks and makes best use of already pressured police resources. It does not predict a worst-case scenario but it does prepare for it.651
The Government has now published a draft SI, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019, the explanatory memorandum to which states that its purpose is to ensure that the UK’s statute book continues to function effectively in the area of security, law enforcement and criminal justice should the UK leave without a deal. The draft Regulations cover a wide range of issues, revoking measures that would otherwise be part of retained EU law, including on cross border surveillance; Europol; Eurojust, ECRIS; PNR; Prüm; SIS II; JITs; exchange of information and intelligence; and MLA. These changes are subject to certain saving provisions to deal with requests made or operations begun before exit day.
649 Ibid, para 139
650 UK-EU security cooperation after Brexit: Follow up report, House of Commons Home Affairs Committee, Seventh Report of Session 2017-19, HC 1356, 24 July 2018, para 65
651 Police chiefs to establish a safety net if access to EU security tools is lost, NPCC Press Release, 18 September 2018
Part 14 of the Regulations would amend orders made under the Extradition Act 2003 so as to re-designate the current Part 1 territories – those operating the EAW – as Part 2 territories. This will mean that extradition requests from Member States will be administered under Part 2 of the Act based on extradition arrangements under the 1957 European Convention on Extradition. Under this procedure, the Secretary of State is required to make a decision as well as the courts.
The accompanying Impact Assessment (IA) states that the Home Office has fully engaged with operational partners and the Devolved Administrations on preparations for a no-deal scenario. Costs are not monetised but the IA notes that legislating will enable the implementation of no deal contingency arrangements for extradition, which will result in the cost per incoming extradition case to rise. It states further that
Due to the more complex extradition process set out under Part 2 of the Act, it is anticipated that the number of extraditions per year would be lower and each would take longer, with resultant implications for outcomes for criminal justice, including victims’ interests.652
Are there any potential advantages to ‘no deal’?
The Political Declaration on the future relationship between the UK and the EU notes that the scale and scope of the future security relationship will depend on
… long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the ECHR, and adequate protection of personal data, which are both essential prerequisites for enabling the cooperation envisaged by the Parties.653
This requirement is consistent with the EU’s position set out in a set of slides on 18 June 2018 addressing ‘Police and judicial cooperation in criminal matters’, in which it was proposed that the UK’s withdrawal from the ECHR, or failure to execute a judgment of the European Court of Human Rights (ECtHR), would activate a “guillotine clause” with respect to internal security cooperation.
In a ‘no deal’ scenario, the UK would no longer need to adhere to these requirements and would therefore have greater latitude in its approach to balancing security against other factors. Some have advocated departure from the ECHR in order to pursue security objectives. 654
Proponents of Brexit also suggested during the referendum campaign that there would be a security dividend in the UK obtaining greater control over
652 Table 1
653 Para 83
654 Sir Michael Fallon suggested in a Commons debate on returning fighters that the ECHR makes it difficult to prosecute individuals who have travelled to join terrorist organisations overseas, and that the UK should therefore withdraw from it (HC Deb 23 July 2018, c727). A similar point was made by Colonel Richard Kemp writing in The Telegraph, 24 July 2018 about the prosecution of returning fighters: “Brexit enables us to leave the European Convention on Human Rights, which never contemplated the type of conflict we face and shackles our legal system in a way that costs innocent lives”
its borders, and thus being able to apply more stringent tests to EU nationals entering the country.
Richard Martin made a similar point in evidence to the HL EU Home Affairs Sub-Committee, suggesting that post-Brexit there would be an opportunity to have stronger borders and to have more intervention at borders. However, he noted that this opportunity was dependent on having access to information about people attempting to enter the country.656 Other representatives of law enforcement, such as Rob Wainwright, suggested that a loss of access to databases would have a detrimental impact on border security, as noted above.
In January 2019 it was reported that Sir Richard Dearlove and Lord Guthrie, former chief of the defence staff, had written to Conservative Association chairs claiming that the WA threatens national security. The concerns raised in the letter related primarily to future defence and foreign policy cooperation and how this might impact on NATO and bilateral defence relationships. However, it also suggested that the WA posed a threat to the UK’s bilateral intelligence sharing relationships, in particular with the USA and the Five Eyes alliance. The letter concluded by asking the recipients to ensure that their MPs vote against the deal and “support a sovereign Brexit on WTO rules, without payment of ransom”.657
However, this was subsequently contradicted by another former head of MI6, Sir John Sawyers, who together with Lord Richards, former chief of the defence staff, and Lord Ricketts, former National Security Adviser, told Sky News that a no-deal Brexit would create a serious and immediate problem for British national security. He described the UK as being in a “uniquely powerful and influential position”, as the only country to be in NATO, the Five Eyes Alliance and the EU.658
15.3 Civil justice cooperation
Extent of existing cooperation
The UK currently participates in certain measures designed to facilitate judicial cooperation in civil, family and commercial matters. These concern the choice of court to be used to determine disputes (jurisdiction), which country’s laws apply (applicable law), recognition and enforcement of legal decisions in different Member States, and the handling of cross-border procedural issues.
The Justice Sub-Committee of the House of Lords EU Committee summarised the practical effect of these measures as follows:
In the area of family law [these measures] provide certainty and protection to children and families in the often fractious and difficult
655 See for example: “Iain Duncan Smith: UK risks Paris-style attacks by staying in the EU”, The Guardian, 21 February 2016
656 Brexit: the proposed UK-EU security treaty, oral evidence, 2 May 2018, Q70
657 Ex-MI6 and defence chiefs warn Tory MPs to vote down Brexit deal that ‘threatens national security’, Sky News, 10 January 2019
658 National security will take ‘years’ to rebuild in event of ‘no-deal’ Brexit, Sky News, 25 January 2019
environment of family disputes. … [S]uch disputes can be made additionally complicated by a cross-border element. … In the civil field [the measures facilitate] the affairs of all those engaged in the myriad cross-border links enabled by the EU’s rules, from the tourist hit by a car in Warsaw, the consumer seeking redress for a defective product in Lisbon, to the employee seeking equal pay in London, and the tenant enforcing their rights in Nicosia. For businesses operating within the Single Market, from large multinational corporations to Small and Medium Enterprises, the [measures offer] all these people the reassurance that when problems arise legal remedies are readily available and easily enforceable across borders.
For further detail on family law and child maintenance, see below.
The Rome Regulations standardise the rules by which the applicable law is determined. They aim to ensure that the courts in EU Member States apply the same law to the same international dispute, in order to reduce the risk of forum shopping (choosing the most favourable jurisdiction for a particular dispute, rather than the most appropriate):
- Rome I Regulation:660 applies in relation to contractual disputes. It provides that, in the absence of party choice, the applicable law is the law of the place where the party performing the service characterising the contract has his or her habitual residence. It also applies with respect to the law of non-Member States.
- Rome II Regulation:661 applies in relation to non-contractual obligations. It provides that the applicable law for the resolution of non-contractual disputes is determined on the basis of where the damage occurs, or is likely to occur, regardless of where the act giving rise to the damage occurs. As with Rome I, it applies equally to the law of non-Member States.
- Brussels I Regulation (recast): applies in civil and commercial cases, typically with a cross-border or external element. It sets out reciprocal rules on:
─ Jurisdiction, that is, which court in which Member State should hear a particular civil/commercial dispute. The primary rule is that a defendant must be sued in courts of the State in which he or she is domiciled, although there are specific exceptions to this rule;
─ Enforcement of judgments, so that court judgments delivered by one Member State court must be recognised and enforced in another Member State without additional processes or procedures
659 Brexit: justice for families, individuals and businesses?, House of Lords European Union Committee, 17th Report of Session 2016-17, 20 March 2017
660 The Rome I Regulation on the law applicable to contractual obligations ((EC) 593/2008)
661 Regulation (EC) No 864/ 2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)
- Brussels IIa Regulation:662 sets out a system for establishing jurisdiction in relation to divorce, legal separation and the annulment of marriage. It provides that an individual may take a matrimonial action in the courts of the Member State where one or both parties to the marriage are or were habitually resident or the Member State of the parties’ common nationality or domicile. It also provides a framework for the automatic recognition of divorces concluded in other EU Member States, without the need for any special procedure, and deals with matters of parental responsibility, including custody, access, and guardianship.
- EU Maintenance Regulation:663 establishes similar rules on jurisdiction, recognition and enforcement of decisions in matters relating to maintenance obligations. It is designed to enable an individual to whom maintenance is owed easily to obtain in one Member State a decision that will be automatically enforceable in another without further formalities. It also establishes jurisdiction for the making of maintenance decisions and includes rules on the applicable law, that is, which Member State’s law should be applied to a particular dispute.
- Small Claims Procedure Regulation;664 European Enforcement Order Regulation;665 and European Order for Payment Procedure Regulation:666 establish streamlined procedures for determining small claims and enforcing uncontested judgments and debts.
There are also a number of international agreements in this area that the UK is party to, either in its own right or by virtue of EU membership:
- Lugano Convention 2007: governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between EU countries and Switzerland, Norway and Iceland;
- 2005 Hague Convention on Choice of Court agreements: provides rules to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions;
- 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children: includes rules determining which country’s laws are to be applied, and provides for the recognition and enforcement of measures taken in one Contracting state in all other Contracting States. It addresses custody and contact disputes, care of children across frontiers, and the treatment of unaccompanied minors;
662 Council Regulation (EC) No 2201/2003 of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
663 Council Regulation (EC) No 4/2009 of 18 December on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations
664 Regulation (EC) 861/2007 on European Small Claims Procedure
665 Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims
666 Regulation (EC) No 1896/ 2006 creating a European order for payment procedure
216 What if there’s no Brexit deal?
- 2007 Hague Maintenance Convention: provides rules for the recognition and enforcement of child support and other forms of family maintenance;
- EU/Denmark 2005 Agreement: extends the Brussels I rules to Denmark (which has an opt out in the area of EU civil law).
UK Government guidance
In September 2018 the Government published guidance on handling civil legal cases that involve EU countries if there’s no Brexit deal. It explains that in this scenario there would be no agreed EU framework for ongoing civil judicial cooperation between the UK and EU countries. The UK would therefore repeal most existing civil justice cooperation rules and instead use domestic rules which currently apply to non-EU countries. The UK would retain EU rules in some instances, where they do not rely on reciprocity, or where they form the basis for existing domestic or international rules.
The UK would also continue to apply existing international agreements, and where the UK currently participates in Hague Conventions by virtue of its EU membership, it would make the necessary arrangements to continue to participate in these international agreements. The guidance notes that in many areas these agreements cover the same areas as EU-specific instruments, although they are not always as comprehensive. It advises any party to a cross-border legal dispute to consider the effect that these changes would have on any existing or future cases involving parties in EU countries, and suggests seeking professional legal advice.
Civil and commercial judicial cooperation
The guidance states that in a no-deal scenario the following rules would be repealed:
- Brussels I;
- The Enforcement Order, Order for Payment and Small Claims Regulations;
- The EU/ Denmark Agreement;
- The Lugano Convention
The guidance advises that businesses, individuals and legal practitioners should consider how the domestic common law and statutory rules which would then apply in cross border cases would interact with the domestic rules of relevant EU countries, to determine how jurisdiction should be established and whether any judgments should be enforced or recognised. It notes that there may be a lack of clarity about this interaction, meaning that some countries may not recognise judgments from UK courts.
In contractual and non-contractual disputes, the guidance states that the Rome I and Rome II rules will continue to apply, as they do not depend on reciprocity to operate.
It further states that the UK would take the necessary steps to re-join the 2005 Hague Convention, and that the Government anticipates this coming into force by 1 April 2019. It therefore advises that individuals and businesses consider the implications of any gap in coverage between the 29 March and 1 April.
European Commission Notice
The European Commission’s Notice to Stakeholders was updated in January 2019. It sets out the consequences of EU rules in the field of civil justice and private international law no longer applying to the UK:
- International jurisdiction:
Proceedings pending on the withdrawal date: EU rules for international jurisdiction will apply with respect to proceedings involving a defendant domiciled in the UK which are pending before a court of the EU-27.
Proceedings initiated as of the withdrawal date: EU rules will no longer apply to proceedings involving a UK domiciled defendant initiated on or after the withdrawal date, unless the EU instrument sets out rules of jurisdiction with respect to third countries. Jurisdiction will therefore be governed by national rules of the Member State in which proceedings were initiated. In some instances international conventions will apply.
- Recognition and enforcement:
Exequatured judgments: if a judgment of a UK court has been ‘exequatured’ (formally accepted in the other jurisdiction) in the EU-27 before the withdrawal date it may still be enforced.
Proceedings pending on the withdrawal date: if a judgment of a UK court has not been exequatered before the withdrawal date, the EU rules on recognition and enforcement will not apply to a judgment that has not been enforced before the withdrawal date. This is the case even where the judgment was handed down before the withdrawal date or the enforcement proceedings were commenced before the withdrawal date.
Proceedings initiated on or after the withdrawal date: EU rules will no longer apply to proceedings to enforce a judgment of a UK court that are commenced as of the withdrawal date in the EU-27. Recognition and enforcement will therefore be governed by the national rules of the Member State in which recognition/ enforcement is sought.
The Notice advises that stakeholders should take these consequences into consideration when assessing contractual choices of international jurisdiction.
The Notice further provides that, as of the withdrawal date, EU-27 Member States should not proceed further with pending judicial cooperation procedures (eg on service of documents and taking evidence), or launch new procedures, involving the UK.
It advises all national Central Authorities to assess whether judicial cooperation procedures risk being pending on the withdrawal date and whether the procedure can continue under national law or a relevant international convention.
218 What if there’s no Brexit deal?
Relevant provisions affected by no deal EU exit
EU Regulation 4/2009
UK membership of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations
In the UK most child maintenance cases are handled by the Child Maintenance Service (CMS), or for the remaining legacy cases the Child Support Agency (CSA), under the statutory child support scheme – these will not be affected by a no deal exit from the EU.
However, in cases where the CMS or CSA does not have jurisdiction, e.g. where one of the parties is not habitually resident in the UK, then the matter can be referred to a court instead.667 In the event of a no-deal exit, the Government has stated that in regard to cases in court:
- If you have an ongoing case about maintenance payments for a child or husband/wife in England, Wales or an EU country on 29 March 2019 (may also apply to new exit date on 31 December 2020), your case will continue unchanged.
- If you make new or further applications after 29 March 2019 (may also apply to new exit date on 31 December 2020), your application may need to be made to a different court or under a different process. Speak to your lawyer for advice.
- If you have a child maintenance decision which you want to have recognised and enforced in an EU country after 29 March 2019 (may also apply to new exit date on 31 December 2020), you can contact the Reciprocal Enforcement of Maintenance Orders (REMO) unit
- If your maintenance case was resolved and has been recognised by the relevant court in an EU country before 29 March 2019 (may also apply to new exit date on 31 December 2020), you should not be affected.668
In cases of cross-border child maintenance cases involving EU Member States, it is possible seek a reciprocal enforcement of a maintenance order (REMO) made in the UK through EU Regulation 4/2009. Should the UK leave the EU without a deal, this regulation would no longer apply.
There is the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations.669 But the UK has not ratified the Convention and is only bound by it as a result of its approval by the EU. If there is no deal, the UK would need to apply to accede to the Convention in its own right. The Government has indicated that it would do so, stating in September 2018 that in the event of a no-deal exit from the EU it:
would take the necessary steps to formally re-join the 2007 Hague Maintenance Convention (in which we currently participate because of our EU membership). It is anticipated that it would come into force
667 Child Poverty Action Group, Child Support Handbook 2018/19, p22
668 Foreign and Commonwealth Office and Ministry of Justice, Guidance: Family law disputes involving EU after Brexit, 6 February 2019
669 See: https://www.hcch.net/en/instruments/conventions/full-text/?cid=131
by 1 April 2019. Parties would need to consider the implications for any new maintenance applications made during the gap in coverage between 29 March and 1 April 2019.
Regulations have already been made to ensure that the “implementing legislation to ensure that the necessary domestic legislation” to become an independent contracting member of the 2007 Hague Convention “is in place”.671 The Government anticipates that this Convention would come into force in the UK “by 1 April 2019”, but that “parties would need to consider the implications for any new maintenance applications made during the gap in coverage between 29 March and 1 April 2019”.672
The Government has recognised that there are differences between EU Regulation 4/2009 and the 2007 Hague Convention, but has said the Hague Convention provides “an effective alternative to the EU rules”.673
However, The Bar Council for England and Wales has contended that “the 2007 Hague Convention on maintenance, to which the UK could accede, would to a much lesser extent fill674 the gap left by the Maintenance Regulation”.675
In addition, REMOs can be established with EFTA members Norway, Iceland and Switzerland through the Lugano Convention which the EU, rather than individual Member States, has ratified.
In the event of ‘no deal’, the UK would need to re-join the Lugano Convention in its own right, which the Government has not ruled out.676 The Government has said that in the mean-time:
we would instead revert to the existing domestic common law and statutory rules, which currently apply in cross border cases concerning the rest of the world, to govern our relationship with the remaining EU countries (and Iceland, Norway and Switzerland).677
International child abduction
Relevant provision affected by no deal EU exit
European Council Regulation No. 2201/2003 (“Brussels IIR”)
670 Department for Business, Energy and Industrial Strategy, and Ministry of Justice, Guidance: Handling civil legal cases that involve EU countries if there’s no Brexit deal, 13 September 2018
671 Namely the International Recovery of Maintenance (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007) (EU Exit) Regulations 2018 (SI 2018//1125)
672 Explanatory memorandum to the International Recovery of Maintenance (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007) (EU Exit) Regulations 2018, p2, para 2.12
673 Department for Business, Energy and Industrial Strategy, and Ministry of Justice, Guidance: Handling civil legal cases that involve EU countries if there’s no Brexit deal, 13 September 2018
674 Compared to other aspects of international family law that it considered and the international agreements that could be substituted in those areas.
675 The General Council of the Bar (Bar Council Brexit Working Group), The Brexit Papers – Family Law, Paper 6, November 2016, p2
676 BEIS and MoJ, Guidance: Handling civil legal cases that involve EU countries if there’s no Brexit deal, 13 September 2018
Sometimes a parent takes a child across international borders and retains them overseas without the consent of the other parent.
Where the two countries concerned in a child abduction case have brought the 1980 Hague Convention on the Civil Aspects of International Child Abduction into force, a court hearing takes place in the country to which the child has been taken to determine the return of the child to their country of origin.
The UK is a signatory in its own right to the 1980 Hague Convention, which for cases involving EU Member States (except Denmark) is supplemented by certain provisions of Council Regulation No. 2201/2003 (‘Brussels IIR’).
Box 7: A primer on Brussels IIR/IIa
Brussels IIR (also known as “Brussels II bis” or “Brussels IIa”) affects a number of family law matters. As the Law Society explains:
“The Brussels II bis Regulation is a single legal instrument that aims to help international families to resolve disputes, involving more than one EU state, over divorce and the custody of children. It aims to:
- provide rules to determine which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one EU state
- simplify the recognition and enforcement of judgments (e.g. a court order) from one EU member state to another
- provide a procedure for situations in which a parent abducts a child and takes them to another EU state.
“The present system does not deal with substantive family law, which remains in the scope of the national law.
“Under the Regulation, EU courts automatically recognise judgments delivered in other EU states on matrimonial and parental responsibility matters. Recognition can be refused only in certain cases”.678
The European Commission has published a Practice Guide for the application of the Brussels IIa Regulation which sets out how Brussels IIR complements the Hague Convention in more detail. For example, under Brussels IIR, “the court shall ensure that the child is given an opportunity to be heard during the proceedings, unless it is inappropriate having regard to the child’s age and maturity”. Another example is that “the court shall use the most expeditious procedures available in national law. The court shall issue its decision no later than 6 weeks from the lodging of the application, unless this proves impossible due to exceptional circumstances”.
A full list of the ten areas679 in which Brussels IIR complements the 1980 Hague Convention can be found in section 1.2 of the Library briefing paper, International child abduction. Although the additional safeguards provided by Brussels IIR will be lost should the UK leave the EU without a deal, the Government contends that:
After 29 March 2019 (may also apply to new exit date on 31 December 2020), whether the UK leaves the EU with a deal or not, the rules about abduction or wrongfully retained children in EU countries will mostly not change.680
Relevant provision affected by no deal EU exit
European Council Regulation No. 2201/2003 (“Brussels IIR”)
Parental responsibility is a legal concept concerning the rights of a parent to take important decisions in regard to that child’s life and their property.
The UK has ratified and brought into force the 1996 Hague Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Should the UK leave the EU without a deal, this will not be affected. However, as with international child abduction, the Hague Convention is supplemented by the Brussels IIR regulation.
The UK Government has explained the impact of leaving the EU without a deal in this area:
If you start a case about arrangements for your children where you have a dispute with your partner parental responsibility after 29 March 2019 (may also apply to new exit date on 31 December 2020), the new rules will be in place but you should apply in the same way. Speak to your lawyer for advice.
- If a case about arrangements for your children (parental responsibility) is ongoing in England or Wales on 29 March 2019 (may also apply to new exit date on 31 December 2020), your case will continue under the current rules.
- If a case about arrangements for your children (parental responsibility) is ongoing in an EU court or needs to have judgments accepted and put into action in an EU country after 29 March 2019 (may also apply to new exit date on 31 December 2020), this may need to be done in a different court or under a different procedure. Speak to your lawyer for advice.
- If a case about arrangements for your children (parental responsibility) has been made final and has been recognised by a court in England or Wales before 29 March 2019 (may also apply to new exit date on 31 December 2020) it should not be affected. However, if you make further applications (even about the same child(ren)) these may need to be made to a different court. Speak to your lawyer for advice.681
The Bar Council for England and Wales has commented:
The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (which the UK has already ratified) would significantly (but not entirely) fill the gap left by the children aspects of Brussels IIa.682
Effect on ongoing civil and family cases
The Government guidance states that the Government will seek to provide legal certainty for businesses, families and individuals who are involved in ongoing cases on exist day, and that broadly speaking, cases ongoing on Brexit day will proceed under the current rules. It acknowledges that it cannot be guaranteed that the EU courts will follow the same principle, nor
681 Foreign and Commonwealth Office and Ministry of Justice, Guidance: Family law disputes involving EU after Brexit, 6 February 2019
682 The General Council of the Bar (Bar Council Brexit Working Group), The Brexit Papers – Family Law, Paper 6, November 2016, p4, para 6.1
222 What if there’s no Brexit deal?
that they will accept or recognise any judgments resulting from these cases. Individuals with cases proceeding on exit day are advised to seek legal advice.
A number of draft SI have now been published which would seek to give effect to the Government’s intentions.683
683 The Law applicable to contractual obligations and non-contractual obligations (amendment etc) (EU Exit) Regulations 2018; Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019; Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018