Brexit Update: The UK’s Negotiation Strategy

UK Breixt Feb 2020Earlier this month, when the European Commission published its draft mandate for the Brexit negotiations with the United Kingdom, I looked at what was in there regarding matters relevant to this blog, in particular at judicial cooperation in civil and commercial matters. The European Commission’s paper was silent on these topics. Today, the U.K.’s equivalent has been published, and it contains a short paragraph on the topic:

“The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.”

Nothing surprising here, even though one could have hoped for an approach that would be slightly more ambitious. The UK government had announced on 28 February 2020 that the Lugano Convention member states Iceland, Norway and Switzerland support the UK’s intention to accede to the Lugano Convention. They will, in other words, not stand in the way of an agreement between the EU and the UK, if and when such an agreement can be reached.

Also not surprising is the United Kingdom’s rejection of the European Union’s proposal to link judicial cooperation in criminal matters to the United Kingdom’s membership of the European Convention on Human Rights. The European commission’s paper had suggested that

“the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention of Human Rights.”

Here is the United Kingdom’s response:

“The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.”

The United Kingdom’s paper does not contain a response to the last-minute addition of the restitution of unlawfully removed cultural objects as a negotiation item that went into the final version of the European Commission’s  mandate (see here for a short post on this.)



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