The Law Society of Northern Ireland has consistently impressed upon decision makers the importance of the Rule of Law and the potential impact a disorderly Brexit will have. In particular, serious discussion and agreement around where each party stands if no Agreement is reached between the United Kingdom and the European Union will be required so as to ensure as far as possible the seamless transition of reciprocal legal rights, currently possible under European Legislation, into domestic legislation and cross-border legislation (in the case of Northern Ireland).
Take one of the most vulnerable groups in Society who span across all ages groups, social classes, gender groups and nationalities. This group has a direct impact on, not just their own generation, but generations to come – this group are the victims of domestic violence. Domestic Violence does not discriminate on grounds of race, age, gender, politics or class and it affects all citizens in all countries. Nevertheless. if a disorderly Brexit occurs, the protection from its effects could be defined by a demarcation line as to which country is in/outside the European Union.
An example of this can be found in Regulation No 606/2013 (the “Regulation”) of the European Parliament, ratified by the European Council on 12 June 2013. This is a reciprocal Regulation which allows the holder of a Non-Molestation Order to have automatic intra-EU recognition thereby creating a “one Order, all countries” principle in any European Union Member State. This means, if the Respondent is in one Member State (for example: Northern Ireland) and uses social media/phone-calls/text messages from his/her address to molest an Applicant who lives in another Member State then the Applicant can obtain a Non-Molestation Order in his/her “home” country” which is enforceable in any Member State thereby preventing a Respondent from “crossing the border” and avoiding enforcement.
One can readily appreciate how in the context of the border between Northern Ireland and the Republic of Ireland, this occurrence is situation is not uncommon. This recognition of one Member State’s Order by another Member State currently permits a victim of domestic violence to have protection wherever s/he may travel within the European Union, which prevents multiple court cases in multiple countries. The importance of “one order, one court” recognition for these vulnerable people cannot be understated when you consider how it operates, procedurally, in practice.
In Northern Ireland, this Order is applicable in the County Courts and High Court of Northern Ireland under the Civil Jurisdiction and Judgement (Protection Measures) Regulations 2014 and the procedure is currently very straightforward. A copy of the Order (translated if necessary) and a Certificate under Article 5 from the issuing Member State is all that is required. Regardless of the length of the Order from the issuing State, the maximum enforcement period in another Member State is 12 months from the issuing of the certificate (and not the Order). It is then up to the law of that receiving Member State as to how the enforcement occurs but it allows the holder of the Order to start from the basis of enforcement in any Member State with a valid, recognised Order.
The loss of this Regulation, in practice, would result in each country having to strike a reciprocal agreement with the UK to recognise all orders coming in/from Northern Ireland (raising questions on the impact of Opinion 1/09 on the Lugano Convention and its scope). Without the provisions of this Regulation being retained post-Brexit, if a victim of domestic violence, with an Order from a Member State, then travels to a Non-Member State, a fresh application for an Order would have to be made in that Country as their current Order would not be recognised.
Whilst the Applicant will establish locus standi to bring the application based on residence (even if temporary) in that country, s/he may not meet the criteria for an Order in that s/he may not be able to evidence an incident of harassment/intimidation/threat/assault within the last 6-12 months where she has had the protection of an Order prior to his/her change of residence. The out-workings would be that the Applicant would have to go through the emotional upheaval of a second court case in another country to reinstate his/her previous Order and be afforded its protection.
This one example serves to illustrate the risks of losing a number of key agreements and social protections on citizens across the UK and the EU. The potential loss of the rights established under this Regulation would in practice restrict the free movement of holders of Non-Molestation Orders from one country to another thereby creating a barrier to access to justice. This example serves to underscore the importance of ensuring a comprehensive agreement is reached between the parties to protect the gains from co-operation that have been made.
Suzanne Rice is President of the Law Society of Northern Ireland.