It presented its position paper on civil judicial cooperation after Brexit on Tuesday 22 August.

The paper deals with the jurisdiction (to determine which country’s courts will hear a civil, commercial or family law case in cross-border issues), applicable laws (which country’s law will apply) and recognition and enforcement of judgements (a judgment obtained in one country to be recognised and enforced in another).

The UK wants to continue to collaborate at bilateral, regional and multilateral levels. The UK currently participates in the EU’s civil judicial cooperation system, but will leave this system after Brexit. The UK wants to negotiate a new unique civil judicial cooperation framework, but is vague on which laws the UK wants to continue participating in. The government paper said it also wants a “smooth transition to a new relationship in civil judicial cooperation.”

Importantly, the paper asserts Theresa May’s red line of ending the jurisdiction of the European Court of Justice (also known as the 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.”

Steve Peers, professor of EU law at the University of Essex, explained in a blog post that:

“There’s one thing the UK government clearly doesn’t want though: the continued ‘direct’ jurisdiction of the ECJ. (The notion of ‘direct’ jurisdiction isn’t explained explicitly, but we can deduce what the government will accept – see further below).  The reader gets the distinct impression that the UK is happy to continue participating in all the EU laws it has signed up to already, except for removing the ECJ’s direct jurisdiction. It’s a bit like tearing down and rebuilding a house, in order to change one brick.”

Peers continued:

“The paper doesn’t address an obvious question: what if an existing EU law is revised post Brexit? This point isn't hypothetical. There's a proposal to revise the current EU law on divorce and child access already. The UK has already opted in to negotiations. But negotiations are slow, and might not conclude before Brexit Day. Other laws in this field are negotiated over time. How to address this topic?”

The UK government still wants to continue to be a member of several international treaties, such as the Hague conference on private international law, and the Hague conference on child abduction. This will be simple, because the UK is a party to them it its own right, not as an EU member state.

For others, the UK participates only as an EU member state, although it should be easy to sign and ratify them after the withdrawal date.

Peers analysed the legal situation with the Lugano convention, which the UK government wants to be a party to, as follows:

“However, the UK also wants to stay part of the Lugano Convention - which extends an earlier version of the main EU law on civil and commercial jurisdiction to relations between the EU and EFTA states (Norway, Iceland, and Switzerland – along with EU Member State Denmark for convoluted reasons). This is another kettle of fish. According to that Convention, to sign up in its own name, the UK either has to become an EFTA state (which is a big issue in itself, since EFTA is a trade agreement) or wangle a special invitation to sign up. And as the government’s position paper acknowledges, it’s awkward that the Convention only relates to an earlier version of that EU law. Furthermore, the ECJ clause in the Lugano Convention is similar (but not identical) to the ECJ clause in the EU Withdrawal Bill as proposed by the government – which says that pre-Brexit ECJ rulings stay binding (subject to the UK Supreme Court possibly overruling them, or the government or parliament overruling them), while post-Brexit ECJ may be taken into account by courts in the UK.”

In an annex to the document, the government explains the principles that “should govern the winding down of our existing relationship in the event that no agreement on a future relationship can be reached.”

In this case, the current EU law should apply for contractual and non-contractual obligations concluded before the withdrawal date. The same for the jurisdiction, choice of court, and recognition and enforcement of judicial decisions. Judicial cooperation procedures and requests for information for civil and commercial matters pending on the withdrawal date should also continue to be governed by the existing EU rules, the UK government paper stated.