Part VIII - Judicial Co-operation

23 Law Enforcement and Judicial Co-operation in Criminal Matters

Gemma Davies

23.1 Introduction

The existence of the Common Travel Area (CTA), and its porous nature, has long required significant co-operation between police authorities in the UK and Ireland. Such co-operation predated membership of the EU. For example, the Intergovernmental Agreement on Co-operation in Criminal Justice, the Joint Cross-Border Policing Strategy and the Joint Agency Task Force all serve to enhance and develop effective co-operation between An Garda Síochána (AGS) and the Police Service of Northern Ireland (PSNI), particularly when dealing with organized and cross-jurisdictional crime.

Despite the strength of the working relationship, Brexit presented challenges for co-operation between the UK and Ireland. EU mechanisms had come to replace or complement bilateral co-operation incrementally over twenty years and facilitated or underpinned much of the co-operation enabling a quicker, more efficient and more dynamic response to crime and criminality. If the UK had left the EU without any agreement in place, this would have resulted in the UK losing participation rights in any of the measures adopted under Title V of the Treaty on the Functioning of the European Union (TFEU). This would have included the loss of a fast-track system of extradition under the European arrest warrant (EAW); quick and efficient exchange of criminal records; access to passenger name records and to rapid DNA and fingerprint matches; exchange of real-time operational information through the Second-Generation Information System (SIS II); and participation in Europol and Eurojust. Continued criminal justice co-operation was recognized as a ‘critical justice priority for Brexit negotiations’.¹

The risks for Northern Ireland were unique. In addition to the loss of co-operation mechanisms, the process of Brexit itself could present increased crime risks depending on how the border between the UK and Ireland was managed. Increases to immigration crime, the smuggling of commodities and a potential resurgence of nationalist or unionist violence in the wake of any intensification of inter-communal tensions heightened the consequences of a ‘no deal’ scenario.² Although the consequences for Northern Ireland were particularly momentous, local representatives had relatively little freedom to address the issues. Despite responsibility for policing and criminal justice being devolved to the Northern Ireland Executive since 2010, the negotiation of police and judicial co-operation mechanisms with the EU was reserved to the UK government.³

Concluding the Trade and Cooperation Agreement (TCA) prevented the cliff-edge consequences that law enforcement and prosecution authorities had been preparing for since 2016. The TCA sets out comprehensive provision in Part 3 for ‘Law Enforcement and Judicial Cooperation in Criminal Matters’. With such a short period until the agreement was subsequently ratified and in force, there was little time for parliamentary scrutiny. This chapter seeks to examine the detailed arrangements which will form the basis of co-operation between the UK and the EU for the foreseeable future and asks how well the provisions work for Northern Ireland and the CTA.

23.2 Extradition between the UK and Ireland

At the time of the UK’s exit from the EU, the extradition relationship between the UK and Ireland was governed by the Framework Decision on the European arrest warrant (EAW).⁴ The EAW provided significant benefits for all participating countries, but these were heightened in the context of the political history of extradition between Ireland and the UK. Extradition between Ireland and Northern Ireland ceased entirely between 1928 and 1965 and was revived only subsequent to both states signing the European Convention on Extradition 1957.⁵ Through the height of the Troubles in Northern Ireland, the extradition of politically motivated offenders from Ireland to the UK was ‘by far the most politically contentious issue to have troubled the relationship between these two countries over the last twenty years or so’.⁶

The EAW enabled a fast-tracked system of surrender which was made by judicial authorities based on mutual recognition. Member states could not refuse to surrender their own nationals, had limited grounds for refusal, no double criminality requirement and no political offence exception. The EAW was an important tool for the UK and Ireland with the UK being Ireland’s biggest ‘trading partner’. From September 2018 to August 2019, the PSNI issued thirty-eight EAWs, twenty-six of which related to Ireland and twelve to other EU states.⁷ Conversely, the PSNI received five requests from Ireland during that period, out of a total of forty-four EAWs.⁸ Arnell and Davies demonstrated that there was ‘clear evidence that over the last 17 years the EAW has smoothed the extradition waters between Ireland and the UK as both re-embraced the principle of mutual trust and recognition’.⁹

The UK’s departure from the EU inevitably changed this. The need to maintain a functioning system of extradition was identified as a key priority at an early stage of the Brexit process.¹⁰ Part 3, Title VII provides for a fast-track system of extradition between the UK and EU member states, still to be known as ‘surrender’, which replaces the EAW and mirrors the arrangement between the EU and Iceland/Norway, as requested by the UK. Norway and Iceland are full members of Schengen, so this is an unprecedented agreement for a non-EU, non-Schengen country and demonstrates the EU’s commitment to finding a way to replicate the EAW provisions as closely as possible.

The new arrangements retain many features of the EAW including the time limits and the limited grounds for mandatory refusal. An annexed pro forma substantially replicates the pro forma used for EAW requests, ensuring familiarity for practitioners. Most importantly for the UK and Ireland, the system remains a judicial one and not political. There are, however, several key differences from the EAW. Article 597 provides that co-operation should be ‘necessary and proportionate, taking into account the rights of the requested person and the interests of victims, having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of … less coercive measures’. This is similar to the proportionality bar prescribed in section 21 A Extradition Act 2003 (EA 2003) which was an invention of UK extradition law not deriving from the EAW. However, proportionality in Title VII is broader than the bar in the EA 2003 since it applies to both accusation and conviction arrest warrants.

Proportionality is now an overarching principle relevant to the whole of the surrender proceedings. Section 21 A of the EA 2003 is unamended and it will be for the courts to consider whether the approach to proportionality will change. There is no ‘trial readiness’ bar mirroring section 12 A EA 2003, only oblique reference in TCA Article 597 to ‘avoiding unnecessarily long periods of pre-trial detention’ as a material consideration of proportionality. The English High Court has clarified that the starting point for any analysis of the provisions was the relevant domestic legislation – the EA 2003 – and not any unincorporated international agreement which was not part of UK domestic law.¹¹

There are three new grounds for refusal. First, Article 602 introduces a political offence exception. Parties may notify the Specialised Committee on Law Enforcement and Judicial Cooperation (SCLE&JC) that the general exception against refusal on the grounds that the offence may be regarded as a political offence will apply only to certain offences.¹² Neither Ireland nor the UK has, however, made such a declaration. In any event, section 13 EA 2003 already bars, as an extraneous consideration, extradition that appears to be issued for the purpose of prosecuting or punishing on account of ‘political opinions’. The political offence exception is not identical to section 13 EA 2003; it relates only to offences that are clearly political in character. It is likely that the exception will cover very few cases and will not affect extradition requests to the UK from Ireland or vice versa.

Second, states may now refuse to surrender their own nationals, or agree to surrender them but only under certain conditions. Ten countries have issued such a derogation, but Ireland has not.¹³ However, there is a requirement that where a party refuses to surrender its own nationals, it must consider whether they can be prosecuted for an offence of commensurate seriousness under domestic law.

Third, dual criminality – where an offence must exist in both jurisdictions – is now required for extradition, except in defined circumstances, although this may be waived. The UK has chosen to require dual criminality in all cases at present, although Ireland has waived the requirement.¹⁴ It is open to the UK to notify the SCLE&JC that it will apply the ‘list-system’ of offences which do not require dual criminality in the future. The UK and Ireland – both common law countries – have greater alignment in relation to criminal offences than the UK has with civil law countries.¹⁵ The TCA also specifies certain rights for the accused, including the right to an interpreter and a lawyer in both the requesting and the executing state, in accordance with domestic law. There is no specific right to legal aid, as initially requested by the EU.

Surrender under Title VII is no longer underpinned by mutual recognition and trust and is instead premised on the principle of proportionality and judicial dialogue between requesting and issuing states. In an Irish High Court case, the applicant argued that, by reason of the manner in which he had conducted his defence, he was at risk of being subjected to violent assault from organized criminals in detention in the UK.¹⁶ Counsel on behalf of the respondent submitted that, as the UK had withdrawn from the EU, the principle of mutual trust and confidence between EU member states no longer applied to the UK. The UK might also in the future withdraw from the Council of Europe and also change its domestic law so as to deprive persons surrendered of the rights currently enjoyed under the European Convention on Human Rights (ECHR). The Irish Court robustly dismissed the respondent’s objections and ordered his surrender to the UK, but the case demonstrates the potential for increased challenge to surrender. How the courts will approach surrender cases outside of mutual trust and recognition has yet to be seen.

TCA Articles 607 and 608 establish various methods of transmitting an arrest warrant, the preferred method being secure transfer between judicial authorities. This works well if the location of the suspect is known. If the location of the suspect is unknown then, in the absence of UK access to SIS II, TCA Article 608(2) gives power to Interpol to facilitate transmission. However, the issuing judicial authority ‘may transmit the arrest warrant by any secure means capable of producing written records’. Ireland has only very recently linked to SIS II and so historically EAWs were always bilaterally shared. The TCA provisions allow this to continue. The UK has lost access to SIS II which allows for real-time sharing of data relating to wanted or missing persons or objects. This database was consulted almost 600 million times by UK police forces in 2019 and the impact on the PSNI will have to be monitored. AGS became fully operational with SIS II in March 2021, but SIS II rules state that ‘data processed in SIS and the related supplementary information exchanged pursuant to this Regulation shall not be transferred or made available to third countries or to international organisations’.¹⁷ Co-operation on operational information will be much more efficient if there is a co-located joint operational centre between AGS and PSNI modelled on the highly functional Nordic police co-operation.¹⁸

Legal proceedings relating to the operation of extradition between Ireland and the UK post-Brexit are still ongoing at the time of writing and could yet derail extradition.¹⁹ Ireland is subject to Protocol No 21, annexed to the TFEU which provides for the reservation of sovereignty by Ireland in respect of the Area for Security, Freedom and Justice (ASFJ). The validity of the legal basis for extradition between Ireland and the UK rests on the question (which has been referred by the Irish Supreme Court to the Court of Justice of the European Union (CJEU)) of whether the Withdrawal Agreement and/or the TCA bind Ireland insofar as those agreements relate to matters within the ASFJ. If the CJEU were to agree with the Appellant’s arguments, ‘it would have the effect of significantly watering down any protocols negotiated in respect of the ASFJ and could, indeed, have implications for any areas of competence where a Member State … had negotiated a retention of sovereignty by means of a protocol’.²⁰

23.3 Exchange of Information between the UK and Ireland

The TCA provides for timely exchanges of passenger name records for air travel in TCA Title III and the transfer of DNA data, fingerprint information and vehicle registration data in TCA Title II. In relation to Title II, there are provisions for an ‘evaluation visit and pilot run’ which may result in a commencement delay to these provisions after a nine-month initial grace period.²¹ Overall, the provisions for the exchange of data are very similar to those operating before Brexit. The UK had wanted to exchange passenger records for rail and sea travel as well, but this has not been included in the TCA. This is an area where bilateral exchange between the UK and Ireland could enhance the safety of the CTA.

Under TCA Title IX, states have a continued obligation to inform each other of criminal convictions handed down within their territory. This importantly ensures that at least one state has a complete record of all convictions no matter where they are handed down in the EU. While the UK is no longer part of the European Criminal Records Information System (ECRIS), the new provisions correspond closely with it. Exchange still happens based on a request, but the provisions do not cover exchange of information on convictions of third-country nationals, an aspect of ECRIS that the EU is seeking to expand. The time limits are not as short as with ECRIS, communication of convictions handed down in a state to the states of the convicted persons’ nationality is done once a month rather than ‘as soon as possible’, and requests must be replied to within twenty, instead of ten, days.²² Although the UK technically loses access to ECRIS, EU states will continue to use it in their co-operation with the UK. The UK, however, ‘shall be responsible for the development and operation of its own interconnection software’.²³ The UK is now using the UK’s Criminal Record Information System (UKCRIS) to connect with member states’ exchange software. The disruption to criminal record exchange between the UK and the EU should be minimal and, although the maximum time limits have increased, the UK and Ireland can aim for quicker exchange.

Previously, the UK could send a European investigation order (EIO) to countries within the EU – a legally binding request to gather evidence by a specific deadline – but this is now lost. TCA Title VIII sets out a replacement which sees the UK fall back on the Mutual Legal Assistance Convention 1959 with some supplementation.²⁴ A form for a request for mutual assistance is envisaged, but has not been agreed. This has been tasked to the SCLE&JC. In the interim, states must make requests through letters rogatory. Availability of evidence to the UK as a third party will depend on the legal situation in each member state. As Ireland has not yet joined the EIO, there is no loss of co-operation in this area. There is no mechanism in TCA Part 3 to replace the suite of Framework Decisions which facilitate transfer of custodial sentence, pre-trial bail or probation supervision between member states.²⁵ Bilateral co-operation could be explored between the UK and Ireland in this area to further facilitate free movement across the CTA.²⁶ Prisoner transfer between the UK and Ireland has been beset by legal challenge and delay in recent years and bilateral agreements could enhance the rehabilitation of offenders.²⁷

The TCA provides a framework for co-operation with Europol and Eurojust in Titles V and VI, respectively, which guarantee certain operational capability and data sharing but also reflect the fact that the UK is a third country. The extent of the relationship is not yet fleshed out and TCA Article 577 states that working arrangements complementing or implementing this Title may be made. Importantly, the UK will be able to assign one or more liaison officers to Europol, one liaison prosecutor with up to five assistants to Eurojust (and vice versa). These officers will be able to attend operational meetings on invitation. The UK will also be able to take part in operational analysis projects as well as attend the Europol Heads of Unit meeting as an observer and participate in Joint Investigation Teams.

23.4 Oversight and Ancillary Concerns

TCA Part 3 has its own rules on dispute settlement and introduces the SCLE&JC, one of the bodies established under the umbrella of the Partnership Council. It has a role in governance of the agreement as well as in dispute resolution, and it will be central to the stability of TCA Part 3 and, one hopes, to its expansion in future years. If a mutually agreed solution to a dispute is not reached, this could lead to suspension of TCA Part 3 or some of its Titles. It will be important that Northern Ireland and the other devolved nations are represented on the Committee.

There are certain aspects of the Northern Ireland Protocol which may come into play in relation to Part 3. Protocol Article 2 ensures ‘no diminution of rights, safeguards or equality of opportunity’ as protected in the 1998 Agreement.²⁸ Protocol Article 11 states that the Protocol shall be implemented and applied ‘so as to maintain the necessary conditions for continued North–South cooperation, including in the area of … justice and security’. The close level of co-operation set out in TCA Part 3, the detailed data protection provisions and the similarity to pre-existing provisions ensure that there is no immediate discernible loss of rights for either UK citizens or Irish citizens. However, in the future there are certain areas which are vulnerable to such developments. Law enforcement access to personal data is an area that could see a divergence in rights protection and has already been raised as a concern in relation to the UK obtaining a data adequacy decision.

Although the European Commission adopted data adequacy decisions based on the General Data Protection Regulation (GDPR) and the Law Enforcement Directive for the UK in late June 2021, for the first time a sunset clause has been included. The decision to limit the duration of adequacy to four years reflects the European Data Protection Board’s concerns about the UK’s surveillance regime and the challenges of redress in the areas of national security.²⁹ This particularly related to bulk interceptions, the use of automated processing tools, and safeguards in relation to overseas disclosure. The Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament also subsequently passed a resolution urging the European Commission to address these concerns in its proposed adequacy decision. It is clear that the EU will continue to monitor the UK’s data protection regime and is able to intervene at any point if it believes that the UK does not ensure an adequate level of protection. Law enforcement and security services’ access to bulk personal data and its processing and retention are clearly areas of contention and possible future divergence.

Such divergences could not only threaten the continuance of the data adequacy decisions but also engage the Northern Ireland Protocol if Irish citizens were afforded greater protection of rights than British citizens. The Northern Ireland Human Rights Commission, and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland are well placed to consider the implications of the Northern Ireland Protocol for the operation of TCA Part 3. Although the courts in Northern Ireland will undoubtedly also have these aspects of the Protocol in mind, representation from Northern Ireland on the SCLE&JC and bringing criminal justice co-operation under the remit of the British–Irish Council should ensure that these important aspects of the operation of TCA Part 3 are not overlooked. It will be essential to the stability of Part 3 that the UK ensures continued alignment of data protection rules.

Part 3 is also based on respect for the protection of fundamental rights and freedoms of individuals, including participation in the ECHR, as well as the ‘importance of giving effect to it domestically’.³⁰ There is a form of fast-track termination in the event of denunciation of the ECHR or one of three protocols which becomes effective on the date of denunciation.³¹ There are also clauses on suspension as distinct from termination in the case of ‘serious and systemic deficiencies within one Party as regards the protection of fundamental rights or the principle of the rule of law’.³² There is no explicit reference to amending or scrapping domestic law giving effect to the ECHR as triggering termination, but these provisions will need to be considered carefully by the UK government during the independent review of the Human Rights Act 1998 (HRA 1998) which has not yet reported at the time of writing. The HRA 1998 is intrinsically linked to the UK’s adherence to the ECHR and ‘the Government’s ongoing application of the ECHR is important in facilitating continued data sharing and effective extradition arrangements between the UK and Ireland’.³³

23.5 Conclusion

The TCA could never replicate the level of law enforcement and judicial co-operation the UK enjoyed as an EU member state. However, without an agreement, co-operation between the UK and the EU would have relied on outdated international instruments which would have been significantly slower and less effective. The UK and the EU have secured co-operation that is as close as conceivable in many areas, particularly in light of the UK’s insistence that the CJEU play no role in overseeing any aspect of the TCA. In many respects, therefore, it represents a good working compromise. However, the loss of real-time data and the reduction of UK influence in Europol and Eurojust will have an operational impact for UK police. There are also areas where co-operation between the UK and Ireland, and in particular the PSNI and the AGS, could be enhanced through bilateral agreement. Co-operation on operational information will best be facilitated through a co-located joint operational centre for the PSNI and the AGS.

The arrangements in TCA Part 3 are complex to put into place and will require a long period of readjustment. Legal challenges have already been made to important aspects of the operation of Part 3. It will therefore be some time before the full consequences and operational reality of the TCA will be felt. A continued high level of cross-border operational co-operation is therefore more important than ever. The implementation of the Northern Ireland Protocol holds opportunities for smugglers and organized gangs on the island of Ireland. Moving criminal justice co-operation within the remit of the British–Irish Council and ensuring formal input of devolved representatives on the SCLE&JC could ensure that police and judicial co-operation on the island of Ireland has the prominence that it deserves.

24 Jurisdiction, Choice of Law and Enforcement of Foreign Judgments

David Kenny

24.1 Introduction

The experience of Brexit has shown that it is fractal in its complexity: figure out one highly complex issue and it will expose another issue, of equal complexity, beneath it. One of these – that has not received a great deal of attention in the process¹ – is private international law, or the conflict of laws: the rules that govern international private law litigation.² This body of law comprises the rules of jurisdiction (the forum of a case); choice of law (the law that should apply to resolve the dispute); and recognition and enforcement of foreign judgments. It is a sort of meta-law – a law about law, giving us guidance on the complexities of how we can get to the point where we can apply complex substantive law to resolve a complex dispute. This system of rules is notoriously complicated, but also increasingly important. As law and litigation – mirroring life – became more and more international in recent decades, so too did this area of law increase in its influence; it is a Rosetta stone by which one can determine how one’s legal obligations will play out across borders.

For EU member states, these rules have come to be dominated by EU law in recent decades.³ Uniform EU rules on jurisdiction and recognition and enforcement, and choice of law in tort and contract, provided a central, stable set of rules across the entire Union,⁴ enabling certainty and predictability in civil and commercial matters. It gave individuals and businesses substantially greater certainty about the way in which international cases might affect them. This uniform European approach was particularly beneficial for common law countries like Ireland and the UK, when many of our conflict of laws rules – particularly on choice of law in tort in Ireland⁵ and recognition and enforcement of judgments in both jurisdictions⁶ – were very out of date. They were also somewhat chauvinistic, in preferring domestic law and in asserting jurisdiction over disputes, rather than applying foreign law or deferring to foreign courts.

Since the role of EU law in this area is very significant, Brexit upturns private international law in the UK by removing, at a stroke, the most important elements of the pre-Brexit status quo in the field. Despite this, it received little attention during the Article 50 period. Save for a paper from the UK government,⁷ which was quite general, there was little comment on what would happen following Brexit. In the Withdrawal Agreement (WA), we are met with silence when it comes to private international law. The Protocol also adds nothing on this topic. There is no provision for ongoing co-operation in this area, and any arrangement between the EU and the UK on these matters will exist entirely separately from the withdrawal arrangements.

This chapter explains and maps the WA’s and the Protocol’s perhaps surprising silence on this crucial topic. There is an explanation for the failure to provide for any matters in respect of choice of law: the UK can, and has been able to, adopt a quick fix in domestic law, with no need for EU involvement or reciprocity, that maintains the status quo ante. Jurisdiction and recognition and enforcement of judgments, however, do not admit of any easy or comprehensive answers. It appears that the UK’s best chance at minimizing disruption in this area has now been taken off the table by the EU, leaving uncertainty about the future. Time will tell how serious this problem will prove in practice.

24.2 The Rise of EU Conflict of Laws Rules

For many decades – and accelerating since 2001 – the landscape of private international law in EU member states has been dominated by EU law. Starting with the Brussels Convention of 1968, agreed among the six members of the (then) European Communities but not directly under the rubric of Community law, a common set of rules for jurisdiction and recognition and enforcement was established.⁸ This was primarily to enable free movement of judgments: since recognition and enforcement is largely linked to jurisdiction – we recognize and enforce those judgments the jurisdictional basis of which we endorse – jurisdiction was essentially a means to an end of making member state court judgments mobile across Europe.⁹ If we all apply the same jurisdictional rules in European cases, there should be few obstacles to recognizing and enforcing judgments across Europe. For litigants, however, jurisdiction rules are just as important, as where they will sue and be sued matters a great deal.

Ireland and the UK later joined the Brussels Convention.¹⁰ In 2001, to make the Brussels Convention rules tighter and reduce regional variance in their application, the rules were set down, in slightly amended form, in an EU Regulation: the Brussels I Regulation, adopted by all members states except Denmark (which did adopt it eventually).¹¹ When, in the first decade of its operation, several issues arose, it was recast in 2012 into the Brussels I Bis (Recast) Regulation,¹² and adopted by all member states, with Denmark opting in to the changes.

Major choice of law rules – the rules that determine what law applies to a case with a transnational element – were also eventually regulated by EU law. Choice of law in contract was regulated by the Rome Convention of 1980, which later was incorporated into EU law in almost identical terms in the Rome I Regulation.¹³ Choice of law in most tort matters (notably not defamation¹⁴) was regulated by the Rome II Regulation,¹⁵ which had no convention predecessor, and at the time was somewhat controversial in respect of the competence of the EU to act in this area at all.¹⁶

With these measures, the vast majority of civil and commercial conflict cases were governed by EU law rules. This uniformity meant that those engaged in commercial activity in the EU were not subject to the vicissitudes of different member states’ (highly varied) domestic conflict rules. In particular, the Brussels regime harmonizing jurisdiction rules at an EU level massively increased the predictability of litigation and the mobility of judgments, eliminating – for EU domiciliaries at least¹⁷ – the various and often problematic national jurisdictional rules to which they would be subject. It also ensured that irreconcilable conflicting judgments from different member states would be unlikely, since all states should be applying the same consistent set of rules. Where this was not the case, it provided for rules of priority.¹⁸

24.3 The Effect of Brexit

The UK adopted all of these EU Regulations while a member of the Union, and was a beneficiary of the legal certainty and the free movement of judgments that they enabled. With Brexit, these Regulations ceased to apply in the UK from the end of the transition period; cases started on or after 1 January 2021 would not be able to avail of the EU rules. Little attention was paid to this during the transition period or negotiations on the WA, and the WA and the Protocol are essentially silent on these issues. When it comes to the two choice of law instruments – Rome I and Rome II – an easy solution is available outside the EU framework. However, with jurisdiction and recognition and enforcement, there is no such solution available, and thus there was no obvious way that the WA could have solved this problem.

The choice of law rules contained in Rome I and Rome II were not a problem because they are universal.¹⁹ They apply the same way to European domiciliaries and cases as to non-European domiciliaries and cases: these rules will apply the law of Guam just as readily as the law of Germany; neither of the parties before the court must be a domiciliary of a member state in order for the rules to apply. They apply to every case that falls within their subject matter scope, and no EU connection is needed. Intimately related to this is the fact that these rules do not require any reciprocity whatsoever: they do not require or expect that the courts of Guam apply the same conflict rules as EU states do, and from a conflict point of view, nothing turns on whether or not they do. Though the regulations are EU rules, then, they do not have to be EU rules in order to work: third states could adopt identical rules in their domestic law and have the same effects in conflict cases, even though they are outside the EU law framework.

This, essentially, is what the UK has done. In the Law Applicable to Contractual Obligations and Non-contractual Obligations (Amendment etc) (EU Exit) Regulations 2019,²⁰ the UK retained, mutatis mutandis, both the Rome I and the Rome II Regulations as part of domestic UK law. The changes are exceptionally minor, and relate to no more than adapting the language of the Regulations to apply to the UK rather than to a member state of the EU. Therefore, Brexit effects no change on choice of law rules in the UK in practice, and the system that was present the day before the transition period ended was seamlessly replaced by, effectively, an identical system.

Jurisdiction and recognition and enforcement, however, are very different, because they are not universal: the rules apply very differently to EU and non-EU domiciliaries and cases. The whole scheme of the Brussels I Regime is founded on mutuality and reciprocity: the rules are designed to ensure that EU member states are applying the same set of jurisdictional rules to all cases involving EU domiciliaries. Member states defer jurisdiction to other member states based on the assumption that that state is also applying these same rules; the resolution of jurisdiction questions is, in principle, uniform.²¹ Based on this assumption, the Regime makes recognition and enforcement of judgments of EU courts effectively automatic, with only the most limited exceptions.²² There is no need to doubt the judgment of any court of an EU member state because the soundness of its jurisdictional basis is secure, since the court has properly applied the EU rules.²³

This means that there is no scope for non-member states to join the Brussels Regime in its form as a Regulation. The process by which Regulations are automatically implemented in domestic law, which eliminates much of the discretion enjoyed by member states under prior jurisdiction rules,²⁴ was designed to work only within the EU legal order where reciprocity can be reliably expected. It also means that a non-EU state cannot simply import the rules into its domestic law. The system works only if both states that are applying the same rules recognize each other’s application of the rules for the purposes of recognizing judgments and deferring to the other’s jurisdictional claims. Applying the rules domestically without being part of the broader EU system would be meaningless, and so the solution that worked for Rome I and Rome II was simply impossible for Brussels I.

The focus on reciprocity, trust and co-operation that undergirds the Brussels Regime, and its reliance on the mechanisms of EU law in order to work, also meant that Brexit would inevitably result in the UK’s exit from this framework. The only question was what could be done to minimize the impact of this. Minimizing this impact is obviously extremely important. Far more than choice of law,²⁵ jurisdiction and recognition and enforcement questions are crucial to commercial actors planning their affairs, as well as to anyone considering litigation in the UK, and they would be rendered far more uncertain by Brexit. But it was apparent that there is no easy solution, and the WA’s and the Trade and Cooperation Agreement (TCA)’s silence on the matter – and its apparent absence from the negotiations on either agreement – meant that the UK would be left to try to find some workable arrangement outside of that framework. Though membership of the Brussels regulations would not have been something that could have been negotiated in the WA, the second-best solution – the EU supporting the UK’s accession to the Lugano Convention – might have been, but was not, negotiated as part of the TCA. As we shall see, that option now appears to be off the table.

24.4 Options for the UK on Jurisdiction/Recognition and Enforcement

There were several theoretical alternatives for the UK’s approach to jurisdiction after Brexit. One of these was never practically possible; one was possible but, it seems, will not happen due to the EU’s unwillingness to allow it; one has borne fruit, and at least made the problem less bad.

24.4.1 The Old Convention

An early suggestion for how to address jurisdiction after Brexit was that the UK could, perhaps, revert to its membership of the old Brussels Convention, which persisted even after the advent of the Regulation for certain territories of member states that were not part of the Union. This would not have been a perfect solution – it is less strict than the Regulations that replaced it, and thus less predictable, and it lacks the various improvements that the 2001 and 2012 Regulations introduced. However, the UK had left the Convention upon accession to the 2001 Regulation, and could not rejoin since the Convention survived only for a limited number of territories of member states where EU law did not apply at the time that the Brussels regime transitioned to EU regulation. This option was never a viable one.

24.4.2 The Lugano Convention

The Lugano Convention²⁶ (first 1988, later 2007) is a Convention very similar to the Brussels Regime, designed to provide a similar set of rules for the EU and European Free Trade Association (EFTA) members, and other territories that had been parties to the old Convention. It replicates to a significant degree the rules in the 2001 Regulation for both jurisdiction and recognition and enforcement. Membership of the Lugano Convention would substantially bridge the gap left by the non-application of Brussels I, although it would not do so completely. Lugano does not incorporate the changes made in the 2012 Recast, including fixes for third state litigation,²⁷ the Italian Torpedo,²⁸ and even easier recognition and enforcement of judgments.²⁹ It is also less strict, with no recourse to the Court of Justice of the European Union (CJEU). But it would be the closest the UK could get to the pre-Brexit rules, and accession to it would have meant less uncertainty and disruption.

The Lugano Convention is, in principle, open to any state. However, accession to Lugano requires the consent of all contracting parties, one of which is the EU. The UK applied to accede on 8 April 2020. There is a one-year period for existing parties to decide on an application. There were various conflicting reports about what the EU might do, but on 4 May, the EU Commission recommended the rejection of the UK’s application, a recommendation that is likely to be followed. The Commission’s approach to the issue makes it relatively clear that the UK will never be allowed to accede to the Convention: the Convention is seen as an adjunct to the EFTA/European Economic Area (EEA), and essentially part of the legal basis of these areas and the Union’s economic relations with those states which have close regulatory alignment with the EU. States outside of this framework are thus not sufficiently aligned with the EU to be members of the Convention.³⁰ Thus, although the Convention is not explicitly limited to EFTA/EEA states, the Commission’s view means that, in practice, it is now and will continue to be seen to be so. Given the unwillingness of the UK to enter into close regulatory alignment of an EFTA/EEA type, it is apparent that UK membership of Lugano will not be possible as long as the UK retains its current stance. It is possible, perhaps, that Northern Ireland – which does have regulatory alignment of this type – might be able to apply to join Lugano. But for the UK in general, it seems clear that the EU Commission sees the way forward as being the Hague Convention on Choice of Court Agreements.³¹

24.4.3 The Hague Convention on Choice of Court Agreements 2005

The best solution now available is the Hague Convention on Choice of Court Agreements. This Convention came into force in 2015 after the EU acceded to it. It also includes Israel, Mexico, Montenegro and Singapore. The Hague Convention provides for the recognition of choice of court/jurisdiction agreements that nominate one of the contracting states as the proper forum for an action arising among the parties to the agreement. The agreement must be exclusive – only the court of one contracting state can hear that case. Other contracting states agree to honour such an agreement by deferring to the court nominated in the agreement, and agree not to hear any action unless and until that court declines jurisdiction. A judgment given on the basis of a jurisdictional claim under the Convention should be recognized and enforced in another Convention state.

The UK is now a member of the Hague Convention in its own right. This means that exclusive jurisdiction agreements nominating the UK or an EU state will be recognized in the other, and thus any judgment that is given on foot of such an agreement from a UK or EU court will be recognized in the other place. This is no small thing, as commercial actors will usually wish to regularize jurisdiction by agreement. The nature of the requirements for such an agreement is broadly similar to Brussels I.

However, there are a number of limitations to the Hague Convention. First, it solves the problem only for jurisdiction agreements that are valid under the Convention; no other jurisdiction issues, that are not subject to agreement, are resolved. Second, it allows only for exclusive jurisdiction agreements; many parties wish to have more than one possible jurisdiction, or asymmetric clauses – common in finance contracts – which allows for different choices for different parties to the agreement. None of this is possible under the Convention.³² Third, there are outstanding questions about how the Convention will overlap with agreements under the Brussels I Recast and whether there will be any problems with this. These issues aside, however, UK accession to the Hague Convention is an important step towards bridging the gap left by Brexit.

24.5 Conclusion

The Hague Convention is a reasonable solution for most commercial actors who will have the opportunity to make a choice of court agreement, giving some security as to both jurisdiction and enforcement. But not all cases will involve choice, and not all those subject to international litigation are savvy commercial actors. For this category of cases, with no chance of Lugano Convention accession, the situation is less rosy. If all else fails, the UK’s common law rules of jurisdiction – based on service and territoriality – and its (perhaps outdated)³³ rules of recognition and enforcement will be used to decide jurisdiction. These common law rules continued to apply to non-Brussels I cases, involving non-EU domiciliaries, during the period of the UK’s EU membership and will now extend to all cases not covered by the Hague Convention. These are not an optimal fallback in terms of mobility of judgments, as few other states use this approach to jurisdiction, and this may cause difficulties in invoking the exequatur process of various European courts, which are, of course, not uniform.³⁴ Ireland and Northern Ireland, having very nearly identical rules of jurisdiction and recognition and enforcement of judgments, should have fewer problems with mobility of judgments, given that recognition is so dependent on similarity of jurisdiction rules. However, UK enforcement rules may pose challenges for EU member state judgments if their jurisdiction basis does not match the narrow rules for common law enforcement. It is thus not clear that recognition and enforcement of judgments of EU member state courts in the UK, and UK judgments in the EU, will be easy if the common law rules remain the predominant approach to jurisdiction after Brexit.