Family Law Journal/2017/August/Update/The Queen’s Speech and Brexit – [2017] Fam Law 802

Family Law Journal

[2017] Fam Law 802

August 2017

The Queen’s Speech and Brexit

Following the Queen’s speech to Parliament on 21 June 2017, we revisit the topic of what the likely effects of Brexit will be upon family law in the UK. Since the publication of the Brexit White Paper in February this year, there has been very little in the way of substantive policy announcements from the government on the legal ramifications of Brexit. The government’s letter to the EU triggering Article 50 simply sought to set out a broad negotiating position, and the European Union (Notification of Withdrawal) Act 2017 ran to all of two lines. This lack of detail has not aided practitioners who are trying to anticipate how much of the acquis (the existing body of European legislation) will be transferred into UK law and how these laws will operate in a post-EU Britain. With the Queen’s speech coming just before formal Brexit negotiations open, we will see if there has been any progress on family law issues.

The Queen’s speech confirmed that a Repeal Bill (no longer ‘Great’) will be the tool that the government will deploy to repeal the European Communities Act 1972 whilst converting the extensive body of EU law into UK law. The government has heralded this method as likely to ‘allow for a smooth and orderly transition as the UK leaves the EU, ensuring that, wherever practical, the same rules and laws apply after exit and therefore maximising certainty for individuals and businesses’. The Bill is presented as a pragmatic way to extricate the UK from the legislative purview of the Court of Justice of the European Union (CJEU) and return power to Westminster, whilst ensuring continuity of the many rules and laws we are subject to that have an EU dimension. The background notes for the Queen’s speech state that the Bill will create temporary powers to make secondary legislation, allowing the government to sift through legislation and amend or repeal inconsistent, unworkable or undesirable provisions.

Due to the sheer scale of the task these powers will need to be extensive, and the most obvious way to in-troduce these powers would appear to be by way of broad ‘Henry VIII clauses’ in the legislation. This ap-proach may well be driven by practical considerations, but it is problematic both politically and legally. It now seems clear that the Repeal Bill will confer powers to the executive to make interim changes through secondary legislation, to avoid clogging up parliament. Given the sheer scale of the Brexit process, it remains to be seen just how ‘interim’ such arrangements will be. There are also considerable questions marks as to how politically, democratically and constitutionally viable it will be for a collation government with a slim majority to exercise such unilateral powers to the exclusion of parliamentary scrutiny.

Additionally, the government’s rather restrained approach to providing legislative detail does little to assuage legal practitioners’ concerns as to how the new system will operate. The government has set out in the Queen’s Speech that they will try and ensure that the same rules apply ‘wherever practicable’ although this gives little away when it comes to just what proportion of the current rules it will actually be feasible to continue to apply.

In family law there remain a number of concerns that the Queen’s speech has done little to allay. Judicial and legislative mechanisms for cross-border disputes involving children, divorce and financial issues will need to be addressed before the UK leaves the EU, but the government has so far provided very few details on its intentions in this area. The desire to remove the UK from the jurisdiction of the CJEU is clear, but the government has yet to present a plan detailing how cross-border family law disputes will be resolved in the absence of the European Court. The supremacy of the CJEU has already become a clear battleground in the opening Brexit negotiations with respect to citizens’ rights, and who should make decisions over EU citizens living in the UK. On 26 June 2017 the EU’s chief Brexit negotiator Michel Barnier tweeted ‘EU goal on #citizensrights: same level of protection as in EU law’. It leaves little doubt as to how the EU envisages future cross-border cooperation taking place.

Enforcing court orders on family law matters is currently fast-tracked across the EU, be this with the recipro-cal enforcement of maintenance orders, securing jurisdiction for a divorce, and recognition of orders made in other EU countries on family matters without special procedures. The Queen’s Speech appears to offer a greater commitment to transitional arrangements. This may simply mean a stay of execution before we have to move away from Brussels IIa (Regulation 2201/2003) and fall back on the more cumbersome international conventions, although it is hoped that lengthy transitional arrangement on some of these issues could mean having a real opportunity to find a long-term solution.

Key EU Regulations such as Brussels IIa (BIIR) and Maintenance Regulation ((EC) No 4/2009) will pre-sumably be transplanted wholesale into UK law through the operation of the Repeal Bill, but how regulations such as these will operate once imported into UK law and whether they will remain part of our law is, at pre-sent, unknown. There appear to be a few options: they could be transposed and a new agreement formed with the EU ensuring reciprocity on key issues such as jurisdictional disputes in divorce, or EU family law could be adopted into UK law but without reciprocity, or EU family law could simply be repealed wholesale. The first option would have the benefit of maintaining important and well used laws relating to child abduc-tion, divorce and maintenance, but could require the ongoing involvement of the CJEU in relation to interpre-tation and enforcement of the law; a potentially politically unpalatable option. The second option would seek to preserve these laws while reducing our entwinement with the EU, but would probably lead to many provi-sions becoming unenforceable and therefore irrelevant. This would primarily be due to lack of a practical vehicle to implement such enforcement if the UK and EU remain at loggerheads over the supremacy of the CJEU on cross-border issues. The third option would simply mean the UK would have to revert back to do-mestic legislation and international agreements, such as the Hague Convention, when dealing with cross-border family law issues. This could cause families considerable expense, as well as delay, compared to the current process for enforcing orders in family matters across the EU. The delays this could cause for issues such as child abduction could be catastrophic for families.

The Queen’s speech has not given us any further indication of which option the government will pursue, meaning we will have to wait for further policy announcements before the situation becomes clearer, and British and EU family lawyers can start preparing for life after Brexit in any meaningful way. The suggestion of a greater commitment to transitional arrangements will be welcomed by many family practitioners although only time will tell whether that will simply end up being a stay of execution.

Thomas Brownrigg

Associate Solicitor, Goodman Ray

Edward Nicklin

Paralegal, Goodman Ray

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