What would be the implications for a family law practice of a vote to leave or a vote to remain? First we need to be clear where we are at the moment.

The EU parliament has no power to initiate legislation. EU laws evolve from the workings of the European Commission, refined by its civil servants and the civil servants of member countries. From this derive specific regulations. Where the United Kingdom is obliged to follow a council ruling it is usually turned into UK law through the medium of becoming a statutory instrument. In fact the “vast majority” of EC legislation is enacted by statutory instrument (SI) under Section 2(2) of the European Community Act 1972 . An EU regulation is directly applicable in member states so there is no requirement to otherwise implement it through UK legislation, and an EU regulation prevails over domestic law.

Whether by SI or without, treaty provisions and directly applicable secondary legislation automatically have effect in the UK by reason of Section 2(1) of the European Community Act 1972 which says that such rules “are without further enactment to be given legal effect… and be enforced, allowed and followed accordingly” . Thus the EU regulations are law and as such they can only cease to be law when repealed. If the UK decides to remain, the power to change a regulation will continue to rest solely with the commission entities. If the UK votes to leave, the power to repeal or amend a regulation will in due course vest in the UK parliament exclusively. That will not happen by reason of the vote; it will happen upon the UK ceasing to be a member of the European Union, a process which the treaty envisages will take place with two years’ notice. Naturally by agreement it could terminate earlier; but the date at this point has to remain uncertain.

So we can look at the some of the questions posed. “What would happen to our laws after the withdrawal date, when EC regulations cease to operate by direct effect?”  The simple answer is – nothing unless and until parliament changes it. The regulations are part of EU law and they remain so until parliament changes the law. The implication that the UK will somehow revert to pre-EU law is nonsensical.

In the same way we can clear the ground of another piece of erroneous thinking that somehow immigration will be reversed, mass deportations of populations will follow and a thick fog curtain will descend across the English Channel. People’s personal existing rights and status cannot be retrospectively changed. However policy on future immigration will revert exclusively to the UK parliament. That would mean it would become a policy decision for the UK parliament as to whether it retains the present free movement of people within the EU and its corollary, very restrictive migration policies for people from the rest of the world or whether it adopts for example some form of Australian style points system which in fact could still give certain preferences to EU countries if that was parliament’s policy decision.

There is an acknowledged “democratic deficit” in EU decision making, and no amount of treaty changing and institutional change in Brussels has been able to get around the fundamental difficulty – if you value uniformity highly, you inevitably must take power away from national governments. The problem is that democratic national governments are directly answerable to their electorates whereas the EU by contrast has no electorate as such, it answers to the governments and institutions that make it up. The EU parliament has no power to initiate legislation and has a fairly peripheral role in EU law making and one can argue whether it carries much democratic legitimacy. Real power is expressed in the commission’s directives and regulations.

So the question is whether the priority should be uniformity notwithstanding the sacrifice of some national democracy to that end, or an inevitable loss of uniformity as the UK parliament reasserts powers in different areas.  It is right to say (as do Bailey-Harris and Wilson – see footnote 3) that uniformity will inevitably be lost if the UK leaves.

So what might the UK parliament do about changing things? It has to be said that family law reform has never been a popular political issue. EU regulations cover jurisdiction for divorce, recognition of divorces from other EU countries, recognition of children orders, expedited child abduction procedures etc. However almost all of these are also the subject of wider international treaties such as the Hague Convention on International Child Abduction, the treaty network for Reciprocal Enforcement of Maintenance Orders etc.   Many family lawyers would welcome an early demise of the “race to file” incentive contained in the Brussels II (Bis) Regulation. It was intended to produce a single rule to eliminate forum disputes. Instead it exacerbated power imbalances in domestic situations and greatly increased cost and conflict. Since its introduction and since the profession has seen its practical effects I have been unable to find a single considered argument in favour of it. Nonetheless it is now unchangeable within the EU. However whether the UK parliament will be interested enough to alter it has to be an open question.

If the UK voted to remain, that endorsement would certainly give support to further moves towards uniformity.  The commission makes no secret that it regards further measures which would bring more uniformity to personal law as desirable. Among these are extending individual’s rights to choose their own law, say, the law applicable to their marital property regime. The Rome III arrangements over inheritance rules would doubtless not be far behind. There are perfectly respectable arguments in favour of these rules but they have significant implications for people’s private lives. But we need to recognise that asking UK courts to import foreign law is a radical departure.

The European Arrest Warrant may well be the subject of early change. As is well known it has meant that fast track extradition to other EU member states will take place effectively upon request. Traditionally extradition could only take place if the crime alleged was also a crime in the United Kingdom, and there would be a fair trial in the country seeking extradition. Fair trial is meant to be guaranteed by the universal standards required of EU countries. However the very different criminal systems lead to different perceptions. For example plea bargaining is repugnant to English criminal law but a UK subject can be extradited to countries where high conviction rates are obtained because of draconian outcomes if the accused does not plead guilty. The same effect as the European Arrest Warrant is produced by the extradition treaty with the US, except notably it is not reciprocal – the US will not allow its citizens to face the same risk. Some countries have fewer safeguards in relation to evidence. The differences can be highly technical but very significant. Again it comes back to whether it is desirable to have full comity across the board as a desirable outcome at the perhaps small price of perceptions of injustice on the part of those caught between the mill stones.

The operation of a lawyer’s business may be affected. Value Added Tax is applied across the EU and is a bedrock of its revenue raising formula. When your client is located in the EU, you apply VAT at the UK rate. Some commercial users may apply the cross-border offsetting VAT arrangements. Legal services rendered to clients outside the EU are VAT free. If there is a Brexit, the chancellor will have to decide whether VAT will still be applied at all, and if so, how will it apply to legal services for non-residents? On the one hand abolition or applying it only to residents would provide a substantial competitive advantage; on the other hand it would be a significant loss of revenue.

Law firms are a knowledge based industry. They are not mass employers but they attach a high premium to talent. The UK legal profession is remarkable for its international reach and size, far more than any other country by proportion. How would Brexit affect that? That critically depends on immigration policy. The easy flow of French, German and Spanish students to get a taste of English law firms might shrink (although bearing in mind that the Erasmus programme is independent of the EU, not necessarily). On the other hand a points based system might bring in more highly qualified US, South African and Australian lawyers, depending on the priority a government puts on lawyers as against, say, doctors and computer engineers.

England has opened its profession to Regulated European Lawyers. Although this acquired its impetus from the Commission policy of opening up the services market, it was not imposed on the UK and is not reciprocal in many EU countries. In other words, we saw it as advantageous, and so again, it is unlikely to be restricted in the future. Trading in goods takes place around the world. Adam Smith demonstrated that protection is in effect a tax on citizens by making them buy goods (and services) at a higher price than otherwise. The EU is emphatically not a free-trade zone. Rather it is a large customs union applying internally uniform rules. It has taken only uncertain steps towards an internal market in services. UK law firms have been highly successful as exporters but they do it by establishing local offices to go “under the radar”, not by competing directly by exporting services to other EU member states. Therefore it seems that the profession’s success has been due to its own efforts rather than relying on EU regulation to open the door.

For the same reasons a family law firm may see a change in its client base. Family lawyers already have a highly international client base. Presently there are different rules for EU origin clients against clients from other parts of the world. If the vote is to leave, the same rules would apply equally to litigants from all countries.

References

[1] “Making EU Law into UK Law” – Vaughne Fuller House of Commons Standard Note SN/1A/7002
[2] “Making EU Law into UK Law” – Vaughne Fuller House of Commons Standard Note SN/1A/7002
[3] Brexit: “To Hell in a Handcart” – Bailey-Harris and Wilson May 2016 Fam Law 568
[4] Brexit: “England and Wales as a Global Family Law Leader or EU Emasculated?” – David Hodson OBE May 2016  Fam Law 572