15 JUN 2016
Brexit: To Hell in a Handcart - Episode One
The below article appears in the May issue of Family Law at  Fam Law 568 and has been made available, free of charge, as a service to our readers.
We two authors are avowedly in favour of the United Kingdom remaining within the European Union. Our views are founded in the political and social realities on which membership is based and from which the legal consequences flow. The legal system in which we have both grown up (one somewhat earlier than the other) is that of EU law being directly applicable in the UK. It thus becomes our domestic law – and for good reasons which the misguided views of the Brexit supporters simply fail to realise. We shall endeavour to convince. Our shared views are best expressed through joint authorship. We believe that the decision of our opponents David Hodson and Gavin Smith (esteemed colleagues of ours but with a peculiar blindness in this field) to write separately aptly demonstrates that further fragmentation is on the way if Brexit eventuates.
The debate in this journal focusses on the issues facing family lawyers. But we repeat our message that the particular area of law nearest to our hearts and pockets must not be seen in isolation from the bigger picture. Episode I of our contribution will paint that bigger picture and Episode II will draw out its consequences in some detailed areas of relevance to family law.
The European Union as a geographic area epitomises the mobility of many an ‘international family’. We do not deny that educational, vocational and financial opportunities worldwide have led to a far greater degree of family relocation than was known to our parents’ generation. However, mobility is particularly marked within the EU and EU law recognises this by espousing the principle of freedom of movement. That is the bedrock on which the common jurisdictional rules applying to all Member States have been enacted. We refer in particular to (in their current versions) Council Regulation (EC) No 2201/2003 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and parental responsibility (Brussels IIa), Council Regulation (EC) No 4/2009 on jurisdiction etc in matters relating to maintenance obligations and Council Regulation (EC) No 1215/2012 (Brussels IR) on jurisdiction etc in civil and commercial matters. Family lawyers with some international practice are also familiar with Council Regulation (EC) No 1393/2007 (the Service Regulation).
The European Communities Act 1972 was the instrument enabling the UK to join the European Economic Community. Brexit supporters purport to emphasise the limitations of the institution which we originally joined but they overlook s 2(4) of the 1972 Act which provides that all UK legislation shall have effect subject to directly applicable EU law. The EU has subsequently evolved and we have evolved with it. Under the Treaty of Lisbon 2009 two treaties are of equal value: the Treaty on the Functioning of the EU (TFUE) and the Treaty on European Union (TEU). The treaties have profoundly affected the constitutional position of the UK. By Art 288 of TFEU, EU Regulations are of direct effect in each and every Member State without any domestic legislation being required to give effect thereto. Thus the dichotomy between EU law and ‘domestic’ or ‘national’ law is in truth a false one: EU law by operation of its direct effect becomes domestic law. The corollary is that any domestic legislation (primary or secondary) which purports to conflict with a Regulation in a field covered by that Regulation ratio materiae is simply null and void. This constitutional position has been lucidly and succinctly explained by Mostyn J in EDG v RR (Enforcement of Foreign Maintenance Order)  1 FLR 270 and by Roberts J in MS v PS  EWHC 88 (Fam).
Brexit supporters with their inevitably narrow perspective trumpet this legal effect as a lack of sovereignty and shriek for the restoration of the status quo ante before we signed up to the EU. But this is wholly to miss the point. EU law is directly applicable in Member States and creates uniform rules in the chosen fields precisely because such uniform rules are required in the context of freedom of movement (including that of families) within the EU. An inevitable consequence of Brexit must be a reduction of freedom of movement within geographical Europe and we wait with anticipation to see how our opponents will deal with this issue.
Take the classic example of Brussels IIa. Given the mobility of families within Europe, it is self-evidently desirable to have uniform rules of jurisdiction on essential matters such as divorce and parental responsibility. Recital (1) of the Brussels IIa articulates precisely this objective. It provides:
‘The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, amongst others, measures in the field of judicial co-operation in civil matters that are necessary for the proper functioning of the internal market.’
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