Justice and Home Affairs

Kenneth Campbell QC | 17 March 2020

© 2019 SCER

Superficially, there might be thought to be little about court procedure and judicial cooperation – civil or criminal – which has an EU-law dimension. In fact, there are a number of areas where there are rules to facilitate cross-border processes, and this chapter focuses on three significant areas:

  • Gathering evidence in civil cases
  • Recognition of judgments in civil cases
  • Criminal justice cooperation – including the European Arrest Warrant

At the point of the UK’s exit from the EU, the Scottish legal system was fully aligned with the Justice and Home Affairs acquis, so at first glance that might be thought to be the ‘restore’ point in the event of an independent Scotland seeking membership of the EU. Of course, both domestic and EU structures will have developed in the interim. There is no reason in principle why non-reserved matters could not be conducted on a basis which preserves a large degree of alignment. However, for reasons that will become apparent, it is likely that in the interim, important aspects of coordination at an operational level may be led by UK government policy.

In the discussion which follows, there is little to be said about substantive rules of law, partly for reasons of space, but mainly because much of the EU action in this area sets a framework for cooperation and mutual recognition.

Gathering Civil Evidence

Council Regulation (EC)1206/2001 provides a mechanism for co-operation between courts taking evidence in civil and commercial matters, in all member states except Denmark. In brief, this provides for a standardised and relatively expedited procedure for obtaining evidence in terms of which a request must be executed by the receiving court within 90 days of receipt.

Currently, Scottish rules of court facilitate this process. However, they are dependent on the Regulation, and hence will cease to have meaningful effect at the end of the transition period. The existing process could conceivably be preserved for incoming requests using procedure in the European Union (Withdrawal) Act 2018, but outgoing requests would no longer fall under the Regulation, and reciprocity improves the efficacy of such arrangements.

Some alternative legal basis for this procedure, in both directions, is required now, and seems likely to form part of an agreement between the UK and the EU, because civil justice cooperation is on the agenda for future relationship negotiations. At the point of independence, some interim arrangement to facilitate evidence-taking would be desirable, at the very minimum building on whatever arrangement is agreed by the UK with the EU as part of the future relationship. As part of the preparation for accession, the Scottish government will require to ensure that the Scottish court procedure is in a form which is compatible with Council Regulation (EC)1206/2001, or any subsequent revision of it.

Recognition of Civil Judgments

Recognition and enforcement of court judgments is more commonly encountered than gathering of evidence. To give two examples: it is a necessary consequence of cross-border trade, and is also vital in family law, recognising the mobility of modern families.

There is a long history of international agreements in this area, even prior to the existence of the EU. However this is an area where there are a significant number of EU instruments, given effect in Scotland via the Civil Jurisdiction and Judgments Act 1982. This is a harmonised procedure for recognition and enforcement of judgments across EU member states, and works by adapting a number of EU law instruments, set out as schedules. The original conventions have been supplemented over time by a series of Regulations, called Brussels I, Brussels II and Brussels (recast), and by the Lugano Convention of 2007. The same legislation also significantly remodelled Scots law on jurisdiction, deliberately harmonising key rules with EU law, and the domestic aspects are unaffected by UK exit.

The UK government has recognised this is an area where disruption of existing arrangements is undesirable. A Private International Law (Implementation of Agreements) Bill was introduced into parliament in February 2020 to give continued effect to several Hague Conventions on family law matters. The Bill also contains paving provisions to allow the UK to sign the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of in its own right after the transition period. Much of the key architecture appears likely to remain in place in this area. Many aspects of this area are either devolved, or shared competence with the UK; it should be possible for a degree of alignment to be maintained so that realignment would require relatively little work at the point an independent Scotland sought to rejoin the EU. Accession to the Lugano Convention by an independent Scotland would be an important interim step, while EU membership was negotiated.

Criminal Justice

Here the picture is complicated by the number of instruments and processes, and by the UK government’s approach to its future relationship with the EU. The European Arrest Warrant (EAW) has become one of those aspects of EU legal order which is misunderstood and misrepresented, but is vitally important to some of the same political interests which express such strong views about it. That ambivalence was also reflected in Protocol 21 to the Lisbon Treaty about the application to UK (and Ireland) of aspects of area of freedom justice and security, which conferred an opt out, with the ability to choose to opt back in again on specific measures. Given the changed European political climate since the Lisbon Treaty was agreed, it seems unlikely such an opt-out would be available to an independent Scotland, even if it were thought a desirable negotiating goal.

The EAW is applied throughout the EU and has replaced extradition procedures within the EU’s territorial jurisdiction. Its key feature is expedition: judicial procedures have been designed to facilitate the surrender of people for the purposes of criminal prosecution or executing a custodial sentence. Currently, the EAW is given effect under the Extradition Act 2003: UK primary legislation. The UK government has recently signalled it will not participate in the EAW as part of a future relationship agreement, proposing instead arrangements based on the EU’s Surrender Agreement with Norway and Iceland. As extradition arrangements are treaty-based, competence is reserved to the UK government, even though many aspects of criminal justice are devolved.

If the EAW is not retained, there are options for re-establishing some form of mutual recognition in criminal matters with EU member states. That would most likely feature reversion to the European Convention on Extradition 1957, which is a Council of Europe Treaty to which all EU member states are signatories, along with a number of other states. While the process is not as smooth as the EAW, it does at least afford a common approach to extradition, albeit at the cost of increased cost and complexity. Accession to the Extradition Convention by an independent Scotland would be an important interim step, while EU membership was negotiated.

Information Sharing in Justice Matters

Justice cooperation is not confined to the EAW; twenty-two of the EU member states are part of the Schengen arrangements for open borders and its associated information sharing. While the UK had an opt-out from Schengen, that is unlikely to be available to new applicants (and there are particular reasons why five current member states are not currently Schengen participants). While the EU starting point in accession negotiations might be that an independent Scotland would be expected to participate in Schengen, there would be scope for argument that the geographical position of Scotland, and the likely desire of the government of an independent Scotland to maintain some form of Common Travel Area with Ireland and, presumably, the remaining UK, should permit an opt-out.

There are a number of important data-sharing structures in the justice and home affairs area. These include:

  • European Criminal Records Information System
  • Prüm DNA system
  • Passenger Name Record data exchange
  • Europol

As part of the future relationship agreement, the UK government seeks equivalent access rather than continued membership (where that is available). For the most part, these are operational processes rather than substantive rules, though statutory backing for some aspects of operation may be required. The Scottish government will have involvement in operational matters. That is infrastructure which would be transferrable in a situation where an independent Scotland was negotiating EU membership. Perhaps a key requirement will be ensuring systems remain compatible, both in terms of hardware and operating procedures.

Conclusion

Much of the infrastructure necessary for (re)integration into the EU justice and home affairs landscape currently exists in Scotland. Some of that will change shape as a result of the UK government’s negotiating brief for the future relationship. Other parts are devolved, and there is more scope for tracking the developing EU acquis. In the event an independent Scotland sought to negotiate accession, there are a number of interim positions which might help with (re)alignment, which would themselves involve adopting other treaties.

 

Kenneth Campbell QC |

Arnot Manderson Advocates

Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher in the Law School at the University of Edinburgh. His expertise includes public law and professional liability.