In the position paper, the government says there is no precedent or mandate by EU, UK or international law which demands that enforcement or dispute resolution of future UK-EU agreements fall under the direct jurisdiction of the Court of Justice.
Earlier in the week the department published 'Providing a crossborder civil judicial cooperation framework', a paper which considers a cross-border civil judicial cooperation framework with the EU post-Brexit.
'Whilst these two papers recognise the need for certainty for individuals and businesses once the UK leaves the EU, and therefore the need for the reciprocal enforcement of UK decisions in the EU and vice versa, they ignore the big question of why the other EU member states would sign up to such an arrangement when the government’s proposals remove the role of the CJEU as the ultimate arbiter of disputes between UK citizens/business and EU citizens/business. Even if the other EU member states will sign up to this, how long will it take? Crucially the paper is silent on what happens in the meantime.
This has the potential to leave families and children in complete limbo in cross-border cases while the government seeks to negotiate a bespoke arrangement with 27 other EU states which could take many years.
The preferred option would be for us to remain fully signed up to the EU regulations and for the CJEU to remain the ultimate appeal court in the civil sphere. At the very least, the role of the CJEU should remain in place until any new arrangements come into force. It would help if the government could come out and say that now.
Also, the paper ignores the fact that EU law is constantly evolving. At the moment, negotiations are ongoing within the EU to revise Brussels II which deals with the recognition and enforcement of divorces and orders concerning children throughout the EU. If we just incorporate existing EU law into our domestic legislation, we will almost immediately be out of step with the rest of Europe who will be running a fast track system in respect of the return of abducted children and the enforcement of custody orders in cross-border cases. Also, we will have no say as to how this law develops.
Unfortunately the paper does not meet the government’s aims of maximising ‘certainty for businesses and individuals’ and ensuring they "can effectively enforce their rights in a timely way". By removing the existing structure, they will be causing the opposite effect. The softening of the government’s approach is to be welcomed but it does not meet the problem or at least won’t for some time.'