Grand Committee
(5 years, 10 months ago)
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The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, I should advise the Committee that if there is a Division in the House, the Committee will adjourn for 10 minutes.
Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019
(5 years, 10 months ago)
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Lord Keen of Elie
That the Grand Committee do consider the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this draft instrument forms part of our ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively for our citizens. If Parliament approves the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of these instruments until the end of that implementation period. Once a deal on our future relationship has been reached, we envisage that they would be revoked entirely.
Your Lordships will be aware that, as part of these preparations, the Government have published a series of technical notices to outline the implications of a no-deal exit for citizens and businesses. One of these, published on 13 September 2018, was titled Handling Civil Legal Cases that Involve EU Countries if There’s No Brexit Deal. It set out the implications of a no-deal exit for the rules on how to resolve cross-border disputes in civil and commercial cases.
The Secretary of State, the Ministry of Justice ministerial team and officials have had regular engagement with key stakeholders in the field of civil, commercial and family justice, including the Law Society of England and Wales, the Bar Council, through the Brexit Law Committee, and individuals. This has included discussions on the technical notice, to ensure that our policy proposals in respect of no deal provide the best outcome for citizens and businesses. The instruments we are discussing today are designed to implement the policy outlined in the technical notice. The Joint Committee on Statutory Instruments reviewed the statutory instrument and had no substantive comments.
This draft instrument makes changes to the rules in England and Wales, in Northern Ireland and in Scotland that determine which courts should have jurisdiction in cross-border civil and commercial cases involving courts in EU and relevant EFTA countries—that is, those party to the Lugano convention: Norway, Switzerland and Iceland. It also changes the rules on how to ensure that any judgments or decisions can be enforced across the EU and relevant EFTA states.
It may be helpful if I explain the current effect of EU law in this area. The current principal measure in relation to civil and commercial law is known as the Brussels Ia regulation, as it replaced the so-called Brussels I regulation. Denmark has a separate agreement with the other EU member states, based on Brussels Ia, to give Denmark access to the EU’s system of civil judicial co-operation, because it does not normally participate in EU justice and home affairs measures, pursuant to Protocol 22 of the Treaty on the Functioning of the European Union. There is also a separate but similar agreement, the 2007 Lugano convention, based on Brussels I, between the EU and Norway, Switzerland and Iceland. It also applies to Denmark. Brussels I, as distinct from Brussels Ia, remains of some continuing relevance because it applies in respect of actions commenced prior to 10 January 2015, but it is of limited relevance to the present issue.
The Brussels regime provides clear and reciprocal rules on jurisdiction in civil and commercial matters—that is, which court should hear a cross-border case. Its application is mandatory. There is no discretion for courts to act otherwise than in accordance with the regime. This means that if, for example, a UK consumer or business has a dispute with a party in another EU member state or a Lugano party, there are clear rules to follow to determine where the case should be heard. This negates the risks of parallel proceedings and more than one court hearing the same case.
There is almost automatic recognition and enforcement of judgments from one participating state in another. This means that if a business successfully sues a business in one participating state, it can enforce the resulting judgment where it needs to without going through costly and time-consuming additional processes. This is possible because all participating states must apply uniform rules of jurisdiction and can trust that jurisdiction was taken properly and appropriately.
The Brussels regime operates almost entirely on a reciprocal basis. Its effectiveness is founded on mutual co-operation between states. Countries respect the jurisdiction of each other’s courts and recognise and enforce each other’s judgments. However, with some limited exceptions, including consumer and employment cases, the Brussels rules do not apply if the defendant to the dispute is domiciled outside the EU. In such cases, EU member states and the Lugano parties apply their own national rules when dealing with cross-border matters.
What will change should we leave the EU without a deal? If the UK leaves without an agreement, the current EU regime for determining these matters will cease to apply to us. After such an exit, the reciprocity in the EU regime will no longer apply in relations between the EU member states and the UK, nor between the Lugano parties and the UK. Furthermore, there are no unilateral actions that the UK can take to compel the EU as a whole to continue to apply the reciprocal jurisdictional rules or to enforce judgments. Simply put, the rules under which we currently operate under the Brussels regime would cease to function effectively in the event of a no-deal exit.
For this reason, it is necessary to legislate now to provide clarity about how the UK will determine whether it has jurisdiction in a civil and commercial case and when UK courts will recognise and enforce judgments from EU countries. However, let me be absolutely clear: without a reciprocal agreement in this area, we cannot determine what rules the EU will apply. This will be down to member states’ own national laws.
As set out in the instrument before us, the Government’s response to this is, with limited exceptions, to revert to the rules on jurisdiction and on recognition and enforcement of judgments that currently apply to cross-border disputes where the Brussels regime does not apply—that is, for disputes involving parties from the UK on the one hand and countries outside the EU and the Lugano parties on the other. This instrument is not creating new policy but transitioning to a well-developed and understood set of rules that provide an effective framework for UK courts to work with and take into account the lack of reciprocity in this area.
There are a few exceptions to this general approach. Importantly, the rules of the Hague Convention on Choice of Court Agreements 2005 will continue to apply, as the UK is acceding to it as a contracting state. This is being brought into UK law post-EU exit by a separate SI, which has been subject to the negative procedure—that is, the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018. Broadly speaking, this means that the courts of a part of the UK will take jurisdiction whenever a valid choice of court agreement to which the convention applies has been made and will readily recognise and enforce a foreign judgment from a foreign court validly selected under such an agreement. Courts of other contracting states to that convention will equally recognise and enforce a judgment from a UK court to which the convention applies.
The EU was a signatory to the 2005 Hague convention on behalf of all members of the EU. It is therefore necessary that we should become a signatory to that convention as an individual state on exit. The application to do so was made on 28 December 2018. It will become effective under the terms of the convention as of 1 April this year.
Secondly, we have sought where we can to maintain jurisdictional protections for UK consumers and employees contained in the Brussels regime. These rules are not restricted to EU-domiciled defendants, so we can retain to a large degree the consumer and employee-friendly approach of the Brussels regime while restating them in a manner specific to UK-based consumers and employees. This largely obviates the need for a consumer or employee to sue abroad in these cases, with the expense and difficulty that brings.
This instrument is necessary to fix the statute book in the event of a no-deal exit. We have assessed its impact and published a full impact assessment. Broadly, we have concluded that although in certain respects the common law may operate less efficiently than the existing Brussels regime to which the UK is party as a result of EU membership, only negligible costs would arise from this SI, relative to the alternative of leaving legislation on the statute book that ceases to operate effectively in the absence of reciprocity after the UK leaves the EU.
Lord Keen of Elie
I am not taking interventions during the opening speech. It is the Government’s view that removing deficient retained EU law and associated domestic legislation from domestic law will clarify the rules that apply to determine jurisdiction, recognition and the enforcement of judgments post exit. This has the benefit of protecting litigants from unnecessary expense and making UK legislation more transparent, therefore protecting its reputation. This will also ensure that the same rules apply to cross-border matters involving EU and non-EU countries.
There will be deficiencies in retained EU law, which implements the instruments of the Brussels regime, due to a lack of reciprocity. That will become obvious if we leave the EU without a deal. This SI fixes those deficiencies and establishes a practicable set of rules for dealing with cross-border disputes in civil and commercial matters in such a scenario.
Lord Adonis
That is extremely disrespectful to the Committee, if I may say so, because now there is no other way for us to ask the Minister questions before he responds at the end of the entire debate—and we will have no means to come back on his statements at that point because the Question will be put at the end.
Lord Adonis
I am happy to take an intervention from the noble and learned Lord, even though he was not prepared to take one from me. I will speak later in the debate but I just want to put on record that I find his actions extremely disrespectful to the Committee. That alone would lead me to wish to negative the instrument, because the Minister is not subjecting himself to the proper process of interrogation and answering questions on the regulations. It is immensely disrespectful and the first time that a Minister has come to a Grand Committee and not been prepared to answer questions in the normal way.
Lord Beith (LD)
My Lords, when I looked at the instrument, I began to wonder whether the Minister was open to the charge from some of his colleagues here and in the other place that he was part of Project Fear, because the instrument sets out some consequences of Brexit, both in general and in a no-deal scenario, pretty starkly.
The loss of reciprocity is central to this instrument. I did not notice the Minister express any concern or grief at this but it represents the removal of something that we have developed in recent years, to the great advantage of litigants, and which we are about to lose, to our detriment. The consequence is that separate enforcement will be required in many cases, including judgments of foreign courts; by foreign, I mean courts in the EU or the Lugano states. Incidentally, that includes Norway, a state with which we have particularly close and friendly relations.
The Explanatory Notes to the regulations show that the Government go only this far by stating:
“The impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”.
However, in the same paragraph the notes go on to explain that,
“an increased risk of parallel proceedings … could increase the number and complexity of disputes before the courts and the cost of litigation for parties … Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.
There is a serious loss in that and a further loss in relation to the European Judicial Network, another development that has been beneficial to this country and to justice across Europe generally. Again, a bald statement is made in paragraph 7.14:
“The inability of the UK to continue to take part in this network is as a result of EU Exit, this SI simply reflects that new status”.
Another valuable judicial development is to be simply cast aside.
Baroness McIntosh of Pickering (Con)
My Lords, I rise to ask a question and I am grateful to my noble and learned friend Lord Keen for setting the scene. A theme seems to be developing in relation to practitioners and the recognition of court judgments with the Government’s proposed exit from the European Union. My noble friend has responded to some of my concerns as regards practitioners and trading in legal services, which I hope to address in the context of the Trade Bill.
My specific concerns relate to the remarks of my noble and learned friend and what is set out on page 5 of the Explanatory Memorandum, which sets out a number of the deficiencies that will arise if we crash out without a deal. I presume that this falls into the same category that services and the jurisdictions of courts fall into with the World Trade Organization and its General Agreement on the Trade in Services. My question is similar to that of the noble Lord, Lord Beith. What will be the status of this in those circumstances? However, I have a more direct question of my own. If this is being done on the basis of reciprocity and if the instrument before us today seeks to fill the gap so that court judgments will be recognised in this country, what measures are the Government and my noble and learned friend’s department taking to ensure that reciprocity will be respected in the circumstances of Britain leaving without a deal?
Lord Hope of Craighead (CB)
My Lords, could the Minister say something about the effect of what is being provided for here on the common-law principle of forum non conveniens? I am sure he knows very well that the doctrine of forum non conveniens was eclipsed, as regards membership of the EU, by the reciprocity principle and the rules that apply throughout the EU.
Lord Foulkes of Cumnock (Lab Co-op)
I am grateful to the noble and learned Lord, who is far more polite than someone else—I gather the Minister did not give way earlier on. Could he explain to non-lawyers exactly what he is talking about?
Lord Hope of Craighead
Yes, certainly. There is a principle, which originated in Scotland, by which a court can decline jurisdiction in a case brought in, let us say, Scotland, on the ground that it is not convenient because there is a better place for the case to be tried. It originated particularly in Scotland out of attempts to raise matrimonial proceedings in Scotland that had a far closer connection with England. The argument developed that if it had a closer connection, it was more convenient, and so the court would decline jurisdiction and you would be transferred to England. That principle is of long standing and has been regarded as very useful in our jurisdiction. However, one of the effects of joining the EU and being subject to the jurisdiction of the European Court of Justice arises from the particular case of Owusu, which the Minister may know about, which has laid down very strict rules that the forum non conveniens principle cannot apply.
Am I right in thinking that, because it is common law and not the subject of any statutory measure, it will be for the courts to work out whether the principle applies without the restrictions that currently apply so long as we are a member of the EU?
Baroness Vere of Norbiton (Con)
My Lords, I remind all Members of the Committee that it is a convention that a noble Lord does not intervene if they were not here at the start of the debate.
Lord Adonis
My Lords, that is a completely inappropriate intervention. My noble friend was not present at the beginning of the debate because he was in the Chamber debating no-deal regulations. It is the Government’s fault that no-deal regulations were being debated in the Grand Committee and in the Chamber at the same time.
Lord Foulkes of Cumnock
I am most grateful to my noble friend. I take great exception to what the noble Baroness said. I am surprised that she knows a lot about convention, as she has not been here very long, but obviously she has picked it up from somewhere. Conventions are conventions, not rules that need to be and must be obeyed. I understand that one of the conventions is that when Ministers are explaining something and are asked a question, they normally give way and answer it. In all the Grand Committees that I have been in, throughout the years—I have been in a number—the Minister has given way. Of course, we are getting used to the noble and learned Lord, Lord Keen, by now.
Lord Marks of Henley-on-Thames (LD)
My Lords, it is not often that I confess to feeling sorry for the noble and learned Lord, Lord Keen, but on this occasion I do, and in the presence of a number of other distinguished lawyers, who have considerable experience of commercial litigation involving cross-border and cross-European border disputes. It is almost impossible to overestimate the importance of the regime that we have built up across the European Union for the resolution of issues of jurisdiction, recognition and enforcement in civil and commercial disputes. We have been promised so many times, in debate after debate on the Brexit issue, that we would not be in this position. The Government were going to get a deal, and one of the first things they would insist on in getting it is that we would preserve the cross-border jurisdiction, recognition and enforcement issues, or rules that we have built up with Brussels Ia.
We are in this position now; I entirely accept that the Minister opened this debate on these regulations on the basis that the Government are still hoping for a deal and that if there is a deal, we will continue along the course of resolving this issue. But it was with horror that many of us heard the noble Lord, Lord Callanan, last night refuse to accede to the Motion of the noble Baroness, Lady Smith, because it ruled out no deal—which it did not—and for him and the Government to be so prepared to countenance no deal.
In our view and that of almost every commercial lawyer with whom I speak, the issues surrounding cross-border litigation are being given far too little prominence and importance. What we are losing is clearly defined in the Explanatory Memorandum as,
“a system of uniform jurisdictional rules to identify the appropriate court in which to bring a civil law or commercial claim”—
that is the first bullet point on page 2—and,
“a simplified mechanism to recognise and enforce the judgment EU Member State/EFTA state courts in civil and commercial cases, with a view to reducing costs for litigants and increasing efficiency. The possibility for such simplified and almost automatic treatment of the judgment of one such state in another is based on the ‘mutual trust’ that each state will have applied the uniform rules of jurisdiction”.
This statutory instrument, subject to some relatively minor exceptions, effectively revokes Brussels Ia, which is at the heart of the Brussels regime. It is also significant that it abandons the European Judicial Network, which has been a forum for judicial co-operation of great use throughout the European Union, and does so with no replacement. The very limited exceptions that I mentioned were mentioned by the Minister: some consumer and employment cases—in British courts, of course—transitional cases and the choice of courts arrangements under the Hague Convention. That is, to coin a phrase used by some Brexiteers in the past, thin gruel indeed compared with the widespread benefits that we get from the system of judicial co-operation and our current arrangements.
Lord Adonis
My Lords, the noble Lord is making an extremely powerful case. For those of us who are not lawyers and are struggling to understand precisely what we are losing as a result of this no-deal regulation and the preparations, can he tell us what we as a country would lose by not being part of the European Judicial Network? It was not mentioned at all by the Minister.
Lord Marks of Henley-on-Thames
I shall move on to that in the course of what I have to say. I do not propose to deal with the detail of it, because the detail is all spelled out.
What we have at the moment is a common system for arranging which court will have jurisdiction, recognising the judgment of courts throughout the European Union and the other convention states and the enforcement of judgments across the European Union. The point of that, and what we will be losing, is the capacity for citizens and businesses to know that they can sue, wherever they are in the European Union, in the appropriate court and that that judgment will be enforced across the Union. That was not the case before the convention and will not be the case thereafter. We will effectively be thrown back on to the rules that pertained before the EU. Those rules are those we have with third countries and in many cases involve satellite litigation, duplication of litigation and duplication of costs. That means that our citizens and businesses will be left weaker and less protected. Notably, totally uncosted in the documentation surrounding this statutory instrument is that commercial disadvantage costs money.
The fact that Britain has become so successful and so attractive within the European Union owes not a little to the fact that its system of law and the mutual recognition and enforcement that it enjoys with other European countries has made it attractive as a gateway to the European Union for those outside the European Union, as well as an attractive forum in which to deal for other member states. Losing that advantage is important and will largely offset some other advantages that we have by having a stable, effective and well-respected legal system.
Lord Adonis
My Lords, if the noble Lord will forgive me, both he and the noble Lord, Lord Beith, have referred to the first sentence of paragraph 12.1, which I think is highly misleading to the lay reader until you have read it twice and understand what it says:
“The impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”.
That is very different from saying “when compared to the status quo”. The ordinary reader would expect the impact being compared to be that of this new regime compared to the status quo, whereas what the Government are doing, which is seriously misleading to the House and to the public, is claiming that, in comparison with exiting the EU and then making no changes to retained EU law, we are no worse off. That misses the massive elephant in the room: we are leaving the EU in the first place and so losing all the benefits, as he and other noble Lords have mentioned, that come from being in the EU and being part of this reciprocal regime in the first place. Could he tell me whether I have understood this issue correctly?
Lord Marks of Henley-on-Thames
The noble Lord has understood it absolutely correctly and has plainly made the point more eloquently than I did. It was the point I made when I mentioned that the noble and learned Lord had accepted that that was how the Government’s impact statement worked. The noble Lord is right to draw the distinction between the,
“impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”,
and the real meat of this, which is in the last part of the paragraph:
“However, as compared to the pre-Exit position, common law rules on jurisdiction provide for a discretionary rather than mandatory stay in the case of parallel proceedings. This creates an increased risk of parallel proceedings”—
precisely the point I was making—
“whether the court in the United Kingdom is seised first or second. This could increase the number and complexity of disputes before the courts and the cost of litigation for parties. Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.
Addressing the Committee, I attempted to add my further point that it is not just the cost to litigants who go through all this but the attractiveness of the United Kingdom as a location for doing business that suffers from the fact that you cannot rely on a uniform system.
Before closing, I simply ask this. We are in this dreadful position of being a very short time away from the risk of a no-deal Brexit. As Sabine Weyand put it yesterday—I make no apology for her being blunt, because I think she was right to be—we could fall into it “by accident” rather than on purpose. What a travesty for a Parliament almost entirely opposed to a no-deal Brexit to be at risk of forcing our country into this calamitous outcome by accident—but that is where we are. So I ask the noble and learned Lord: in the circumstances, given that almost everybody accepts that this reciprocal set of arrangements for the justice system is of such crucial importance to our functioning legal system, what talks have there been at Secretary of State for Justice level with other members of the European Union to try to preserve some element of a reciprocal system that will replace what we have, even if we walk into this catastrophe by mistake?
Lord Garnier (Con)
My Lords, I seek your Lordships’ indulgence. I was a little late to this sitting of the Committee because I was detained listening to the wonderful oration of the noble Lord, Lord Foulkes, in the Chamber. He made a number of interventions.
Lord Foulkes of Cumnock
With the permission of the noble Baroness, Lady Vere, I intervene merely to apologise to her, because I realise that she will be as upset as I am about what we are doing at the moment. She was a very good director of ConservativesIN and campaigned very hard for us to stay in Europe, so I realise she must be deeply hurt by what her Government are undertaking at the moment. I apologise.
Lord Garnier
We are not only in danger of talking about forum non conveniens but interventus illicitus. I will advance one simple point. I entirely accept what my good friend, the noble Lord, Lord Marks, has said on the unfortunate state of affairs we are in, and would be in were we to have a no-deal departure from the European Union. Surely the whole point of today’s exercise is to anticipate that and to ensure we have mechanisms in place to mitigate the consequences he has so correctly spelled out. Yes, it is all very sad and much to be regretted, but it would be even more to be regretted if my noble and learned friend Lord Keen were unable to move this Motion to its sensible conclusion.
Lord Marks of Henley-on-Thames
I will simply respond to that, because in a sense it is an intervention on me. I accept that this is conditional in the sense that the noble Lord mentions. However, my fundamental point was that the importance of this aspect of no deal has been woefully underestimated in considering how dangerous the concept of no deal is. To that extent, I regard the points I have made in highlighting that danger as valid, because no deal is profoundly to be shunned.
Lord Hope of Craighead
In fairness there is an EU sub-committee chaired by the noble Baroness, Lady Kennedy of The Shaws—I cannot remember which sub-committee it is.
Lord Hope of Craighead
Thank you. The Justice Sub-Committee prepared a detailed report drawing attention to exactly what the noble Lord has referred to. There was an impassioned debate—I do not know whether the noble Lord was present—at which these points were made. The criticism is not against us, as it were, because in this House we have been taking our responsibilities seriously. However, I understand the point the noble Lord makes about the effect of leaving the EU and the distress he feels.
Lord Beith
There is one thing the Government have not made clear. The impact statement, brief as it is, is structured around there being two options—the other option being not to change retained EU law. As I understood it, that option implied that in a no-deal situation, if we did not have this instrument, the courts would be left behaving as they had previously and hoping that courts in other countries would do the same. One of the things that was not explained very well in the impact statement—perhaps the Minister can clarify this later—is what the other option the Government rejected was.
Lord Beecham (Lab)
My Lords, I have practised law for a long time—fortunately none of it in relation to the EU and the complications we are debating today. I defer to the more qualified Members of the Committee today, some of whom have already addressed us.
These regulations might best be described as a hors d’oeuvre to the four-course Brexit banquet we are being served today—although, curiously, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has raised any concerns.
In addition to reverting to the pre-EU membership system, the statutory instrument repeals a decision that currently allows the UK to co-operate on civil and commercial matters in the EU judicial network. What estimate have the Government made of the impact on the UK of that change, and what consultation took place with industry or other potentially interested parties given that the so-called Brussels regime operated on a reciprocal basis?
The Law Society, which is generally supportive of the statutory instrument, is concerned about the loss of the existing framework for determining which national court has jurisdiction and for recognising whether or not there is a choice of court between the parties to disputes.
The impact assessment contains a disturbing paragraph which states:
“Businesses and individuals litigating in the courts of EU countries will have an advantage over those litigating in the UK as UK litigants cannot guarantee the judgment they get from the UK courts is enforceable in the EU but litigants who get a judgment from the EU courts, will almost always be able to obtain enforcement of it in the UK”.
It is a one-sided deal, as it were. The English legal system has prospered remarkably through its participation in the EU but that looks to be one of the costs and losses that it will incur.
The Law Society notes that hitherto the existing system has fostered cross-border trade and encourages litigants to use the UK courts in the knowledge that their judgments would be enforceable across the EU and calls on the Government to accede to the Lugano convention—which, as the noble and learned Lord has indicated, is not an EU organisation although the EU is a party to it. Can the Minister indicate the Government’s response to that suggestion?
Lord Adonis
My Lords, the only noble Lord who has not been prepared to take interventions is the Minister; it is unprecedented in my experience of Grand Committees. It is a straightforward attempt by the Government, which I am afraid we have seen time and again, to suppress parliamentary debates and shorten proceedings in a Grand Committee. One can understand why the Government wish to do this: it is simply impossible now to introduce and enact all the statutory instruments relating to no deal in time for the UK to leave the European Union at the end of March unless they are not scrutinised by Parliament. If they are not, the Government can increase the volume that come before the Grand Committee day by day. The hundreds more that have to come can then be hustled through. I say to the noble and learned Lord, who we hold in high esteem as a barrister, that if these sorts of proceedings and this sort of short-circuiting of due process were taking place in a court in which he was appearing, I imagine that he would be the first to criticise it. It is our duty to hold him to account. As he is not prepared to follow the normal conventions of the Grand Committee and the House, that should lead us to refer this regulation to the House for further debate as a matter of principle, not least because of all the issues raised in the debate.
Lord Foulkes of Cumnock
I am grateful to my noble friend for what he said. I was participating in a debate on the other statutory instruments we are dealing with, as was confirmed by the Bench opposite.
Until I heard the excellent speeches from noble Lords on the Liberal Democrat Front Bench and the noble and learned Lord, Lord Hope, I had not realised what a vital issue we are dealing with. As my noble friend Lord Adonis said, we are not dealing with it line by line in the detailed way that we would normally deal with something so important. Even worse, there has not been proper consultation. We have not heard the views of a widespread group of lawyers: only a few have been consulted. If we had had a wider consultation, the lawyers might have been able to point out some of the difficulties that might arise. We could end up with some unintended consequences because of a lack of scrutiny not just in here but outside. Does my noble friend agree?
Lord Adonis
My noble friend makes a very powerful point. Paragraph 10 of the Explanatory Memorandum says on consultation:
“A formal consultation on these legislative amendments has not been carried out”.
I do not know why the relevant Delegated Powers Committee did not highlight that as an issue before the House. The noble and learned Lord, Lord Hope, in a very telling intervention—as a former head of the Supreme Court—talked about the wider impact of leaving the European Union on our legal system and on the recourse that individuals and bodies corporate have as a result of losing all the benefits of EU membership. Given the scale of those concerns and losses, I would have thought that a formal consultation should have been the first thing to be carried out in respect of this statutory instrument.
Although my noble friend Lord Foulkes and I lack expertise in many of these areas, we can see the common themes because we have been present for the statutory instrument debates on all these subjects. One common theme is that of the Government seeking to hustle through these regulations with minimal debate; the other is very inadequate consultation. The consultation has been so inadequate because it simply would not have been possible to conduct a consultation according to the normal Cabinet Office rules of publishing draft instruments, which require: 12 weeks of formal consultation; assessment of the consultation responses; their publication; and the Government response to the consultation, all within the timescales available. The normal standards of good government, which my noble friend and I remember in the far distant days when we had Governments that sought to improve the country and not wreck it—as we have at the moment—simply do not apply any more.
Indeed, it is not just that there was no formal consultation, which we read in paragraph 10.1. Paragraph 10.2, which is suspiciously familiar to Members of the Grand Committee because we have had variants of it time and again too, states:
“The Government’s basic approach … has been discussed with a number of members of the legal profession”.
Which members? Perhaps the noble and learned Lord will tell us when he responds, if he intends to respond to any of the points raised in the debate. On what basis did the Government choose those members? Why has the list of those consulted not been published? Lastly, I put a fair question to the Delegated Powers and Deregulation Committee, which examined these regulations: why did it not seek to bring before the Grand Committee a statement about the consultation processes that were actually undertaken?
My noble friend and I remember that in other cases, we have seen in Explanatory Memoranda that the Government consulted “selected” and—what was the phrase?—“trusted” members of the relevant industry. Members of the Grand Committee who were present for that debate will recall that we had a long discussion about what “selected and trusted” means. We did not think that the phrase included my noble friend Lord Foulkes and myself because, clearly, we are not trusted by the Government to engage in scrutiny or else the noble and learned Lord, Lord Keen, would have allowed us to intervene on his remarks. However, it is important that the Grand Committee understands who the Government are consulting so that we can also understand who they have been listening to, as well as on what basis they have made any changes to the drafts. Those who were consulted as set out in paragraph 10.2 is therefore important.
I want to make a few remarks on the statutory instrument. I was struck by the remarks of the noble and learned Lord, Lord Hope, about the wider context. I hope that the Minister might tell us more about that in terms of what rights will be lost and what the losses will be to the country as a result of not having reciprocal arrangements. As a complete layman, what I do not understand from reading the document in its entirety as regards the Brussels regime is that looking at the dates, the Brussels regime predates British membership of the European Community. I believe that the document dates from the 1960s and is known as Brussels Ia. We have a number of different variants in the Brussels regime that go back to 1968, which of course was five years before the United Kingdom joined the European Community. That raises a big issue.
Unless someone can correct me, as I understand it, the Government are proposing to withdraw from the Brussels regime. The noble Lord, Lord Marks, made a point that ought to be brought out more; indeed, it was mentioned by the noble Lord, Lord Beith, too. It appears that a very important policy decision has been taken in this statutory instrument: not to leave retained EU law static on departing from the European Union, which is the default procedure under the European Union (Withdrawal) Act, but to make changes. I am not technically competent enough to understand the changes fully, but the Government have glossed over changes in paragraph 12.1 covering the difference in quantifiable terms between making no changes to retained EU law and changing it.
The question that I would like to put to the noble and learned Lord is: if we were part of the Brussels regime before we joined the European Community—he is going to correct me, which is good, because this is exactly the kind of knowledge that the Grand Committee needs—why do we not simply revert to the position before 1973 rather than go to the new position that the Government are establishing under this statutory instrument? Perhaps he could explain the benefits of the new position. Looking at all the lawyers nodding their heads in the Grand Committee, I may have misunderstood the position. All I can say is that, if I have misunderstood it, I suspect that many members of the general public will have misunderstood it, too, so I look forward to the House doing what it is supposed to do on these occasions and elucidating the real state of play.
The other fundamental point, which was mentioned by the noble Lords, Lord Beith and Lord Marks, is the highly contradictory and misleading impact statement in paragraph 12.1. It seeks to minimise the impact by relating it simply to the difference between making no changes to retained EU law, if we crash out with no deal, and making the changes that are set out in the statutory instrument, rather than relating it to the much wider context of the impact on reciprocal rights, the ability to enforce those rights and so on that arises from leaving the European Union without a deal. Even during this debate, because I have been so restrained in my interventions, I have not been able to understand fully what has been said. The noble Lord, Lord Marks, referred several times to satellite litigation. I do not understand what satellite litigation is. Could the noble Lord explain?
Lord Marks of Henley-on-Thames
It is when you are litigating about two issues at once. You are litigating in a principal case and you have another case going on to decide one aspect.
Lord Marks of Henley-on-Thames
In this case, it is two jurisdictions. There is one case and you are having an argument, in another court, about whether it should be proceeding in court 1 or a court in another jurisdiction.
Lord Adonis
That is a very helpful elucidation, because I thought that it might be litigation that took place on a satellite.
Lord Adonis
I did not understand the concept. There are more absurd things. Given that the Government are now preparing for martial law, we are told, if there is a no-deal Brexit, litigating in relation to satellites would be a far less absurd proposition. I take the key point to mean that, under the existing Brussels regime in which we operate as part of the EU, you do not need to undertake satellite litigation, because proceedings in one jurisdiction count as proceedings in all jurisdictions. As a non-lawyer, I hope I have understood that point correctly. The satellite litigation to which the noble Lord refers is a considerable loss of benefit to people seeking to litigate. Not only is that the case, but it also makes this jurisdiction considerably less attractive to people to bring cases in, which I took to be the noble Lord’s other point. These are huge issues about the whole future of our legal system and the rights of redress that people have in it, all of which the Government are trying to hustle through in a statutory instrument subject to limited debate and with the Minister not prepared to take any interventions whatever.
The other key point that arises relates, as the noble Lords, Lord Beith and Lord Marks, said, to the final sentences in the long and highly convoluted paragraph 12. Those sentences, which completely contradict the earlier sentences, say that,
“as compared to the pre-Exit position, common law rules on jurisdiction provide for a discretionary rather than mandatory stay in the case of parallel proceedings. This creates an increased risk of parallel proceedings whether the court in the United Kingdom is seised first or second. This could increase the number and complexity of disputes before the courts and the cost of litigation for parties. Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.
I do not understand why no assessment has been made in any quantified way of the impact of all those significant losses, as set out in the final sentences of paragraph 12.1. Perhaps the Minister will tell us why. Could he offer the Grand Committee some assessment? It is important before we agree to this statutory instrument that we have some assessment of its impact.
I am also surprised because some of the noble Lords present are members of the relevant EU committees and the Delegated Powers Committee. Why did they not ask for such an assessment to be conducted before the statutory instrument came to the House?
Lord Marks of Henley-on-Thames
The noble Lord may have noticed that in the impact assessment, among the business assessments, it just says “not applicable”. That seems a dereliction of duty.
Lord Adonis
I take the noble Lord’s point. Is he saying that he believes that they are applicable?
Lord Adonis
So why does it say that they are not applicable? These issues are significant.
The final issue in the debate, to which I hope the noble and learned Lord will respond, was raised by my noble friend Lord Beecham and other noble Lords. It is about the losses to this country of not being part of the European Judicial Network. My understanding is that there is nothing statutory about the network. Am I wrong? Is the network a formal institution of the European Union? If it is an informal body, and if belonging to it brings us great benefits, why can we not continue to be members of it even after we leave the European Union? Indeed, to the lay man, being part of the network would seem positively beneficial because, presumably, the network co-ordinates and promotes joint understandings. If we will be separate jurisdictions, with neither wanting, as far as possible, to operate in parallel, is that not all the more reason for us to be part of the network and not seek to leave it? If we crash out with no deal and all losses as set out or implied in the Explanatory Memorandum, why we are not seeking to remain part of the European Judicial Network? Might it be in the country’s best interests for the Government to seek to keep us in the network?
Lord Keen of Elie
My Lords, this Parliament decided that the United Kingdom will leave the European Union on 29 March this year. That is the determination that has been made. That date has been set in law. The Executive must respect the law as determined by Parliament and respond responsibly to it, as laid down by Parliament. Therefore, they must address the implications of us leaving on 29 March if, as at present, we do not have a withdrawal agreement concluded with the European Union. That is what this statutory instrument seeks to address.
In that context, we must address the difference between leaving on 29 March and doing nothing about the existing state of the law—with regard to judicial recognition, identity of choice of court and law, the enforcement of judgment and so on—and doing something about it. I quite understand the observations of the noble Lord, Lord Marks, about the benefits of our being in the Brussels Ia system, but we can be in the Brussels regime only as a member of the European Union. According to Parliament and the law it made, we will cease to be a member of the European Union on 29 March 2019. Although the Brussels regime can be dated back to 1968, it was in that context a regime for existing European Union members and not open to non-members, to clarify a point made by the noble Lord, Lord Adonis.
The first point is that we have to consider the impact of us leaving on the date I have mentioned if we make no change to the existing law, and the impact if we change the existing law. I quite understand the point repeatedly made, that in many ways we would prefer the cake analogy: we would like to have our cake and eat it. We would like to remain within the regime, even if, as Parliament has determined as a matter of law, we are leaving on 29 March 2019. But we cannot have it, because Parliament has made that determination. Many may regret it now, and many may regret it later, but that is the law as determined by this Parliament, and we have to accept that. We can seek to change the law—of course we can—and no doubt there are many who may, even now, seek to change it. However, the law is as determined by this Parliament.
Lord Marks of Henley-on-Thames
I hope that the noble and learned Lord will at least address my question on what consideration has been given to applying to join the Brussels regime entirely separately. Although he says that it is a creature of the European Union, and by and large of course it is, there do not seem to be insuperable obstacles to negotiating reciprocity around the context of the Brussels regime but outside the European Union.
Lord Keen of Elie
I take the noble Lord’s point when he says “negotiate”; that is the whole point. If he looks at the political declaration, there is a reference to the desire of all parties to negotiate on this among other issues so that we may be part of a regime perhaps similar to Lugano. Let us be clear: we have not only applied to become an individual signatory to Hague 2005, which involves reciprocity between the convention members and ourselves—although I say, quite candidly, that it is not as perfect as Brussels Ia, being more akin to Brussels I. That is why it is in many ways a second best to that extent, but that is as far as we can go. We have also applied to the council of the Lugano convention to become a party to the Lugano convention—a point raised by the noble Lord, Lord Beith. That will of course require the consent of the EFTA parties and of the EU, and it will be subject to negotiation, but we hope also to be a member of the Lugano convention.
If noble Lords have regard to the impact assessment, they will see that under option two we looked at simply leaving the UK law as it is—in other words, embracing all those relevant terms of Brussels Ia without any right to reciprocity from the EU 27. The difficulty there is that in the absence of reciprocity, people would not know what they were going to get from those provisions. Furthermore, it would raise two obvious difficulties. First, corporations, companies and associations within Europe could secure a decree there and automatically seek to secure enforcement in the UK, but companies, corporations and associations in the UK that secured a judgment from a UK court could not expect to enforce it in the EU 27 countries. That is why I stressed the concept of reciprocity. Yes, we want to negotiate and to secure reciprocity, but until we do, we have to make sure that the statute book is in some sort of order for a no-deal exit—which, as far as I am aware, no one truly wishes for.
Secondly, if we embrace the Brussels Ia regime without being a member of the EU, we would be discriminating between the EU 27 jurisdiction and all the other third-party countries. We would be giving some benefits to the EU 27 under Brussels Ia, albeit without reciprocity, but we would not be giving the same benefit to third-party countries such as the United States, India and China, and Commonwealth countries such as Australia and New Zealand. That raises real issues about discrimination in the context of wider issues on services and so on.
Lord Beith
I thank the Minister for explaining the Government’s objections to option two. It might have been a good thing if he had written the impact assessment and developed those points. I shall still disagree with him on some other matters, including the fundamental issue here, but he has clarified that very helpfully.
Lord Keen of Elie
I am obliged to the noble Lord. I know the noble Lord, Lord Adonis, made much of this, but that is why the impact assessment is between the statute book as it is upon exit and the statute book as it would be under the instrument upon exit, because Parliament has made the law and Parliament is determined to exit on 29 March. If that is reversed, so be it, but that is where we are and that is the impact that we have to properly address in this context.
On the wider point made by the noble Lord, Lord Marks, about the benefits of being in the EU and within Brussels Ia, I am not going to seek to disagree with him. Brussels Ia was a marked improvement on Hague 2005, for example; we all know that. Therefore, in many senses, exit from the EU without a deal is unattractive in the context of the provision of legal services in the UK, as indeed are the implications of that for those who have to engage those services and have recourse to the courts. No one is denying that either, but these are the consequences of the law that Parliament has made in these circumstances.
The noble Baroness, Lady McIntosh, asked what steps are being taken with regard to reciprocity. As I say, we are applying to become signatories to the Hague convention 2005, which will give us certain reciprocal rights. We are applying to the council of the Lugano convention to become a party to that, which will give us reciprocal rights with the EFTA countries. In addition, we are intent upon negotiating around the whole issue of judicial co-operation in future, which is why it features in the political declaration. At this stage we cannot demand reciprocity from the EU 27 and they are certainly not prepared to offer it at this stage. At a very early point there were discussions about, for example, the recognition of legal qualifications and mutual issues of that kind, and the EU made it very clear at that stage that that was a discussion for another day. That is where we are.
Coming on to a further point made by the noble Lord, Lord Beith, about what happens to the SI, if we have an agreement on the terms of the present withdrawal agreement then we go into a two-year implementation period where we will remain a part of the Brussels Ia regime, so the instrument itself will essentially be suspended by the withdrawal agreement Bill. However, it will not be completely done away with because at the end of the implementation period—two, three or four years, whatever it might be—we will then have to decide whether or not we have achieved agreement with the EU 27 on future judicial co-operation. That might be on essentially identical terms to what we have now, in which case we will not need the instrument at all, or it may be that we cannot achieve agreement at that stage, in which event we will need to revive the instrument in order to bring the statute book into proper order. That is why I have referred to it as being “deferred” in that context; it is deferred for the implementation period, whatever that period might ultimately turn out to be. That is where we are on that.
On the issue of forum non conveniens, which the noble and learned Lord, Lord Hope, alluded to, that has always been a part of our common law because we apply it in the context of third party countries outwith the Brussels Ia convention. The noble and learned Lord may recollect the litigations that took place around the Pan Am/Lockerbie case and the attempts to take it further than just applying the doctrine of forum non conveniens but rather to apply the issue of interdict against the raising of proceedings in a third party country, which is attendant to the doctrine of forum non conveniens—although I recall being in a Texas court where the judge asked it to be pointed out to me that in Texas they do not have forum non conveniens, and we have to accept that there are some jurisdictions of that ilk. Nevertheless, the courts will fall back upon these common-law concepts which have not been done away with but have not applied in the context of the Brussels Ia regime for the reasons that the noble and learned Lord very carefully pointed out.
The European Judicial Network is a very fine body but it was set up in order that there could be engagement across the EU 28 about the operation of the regime that at the moment we are referring to as Brussels Ia, but it also looks at Brussels IIa and other issues. It concerns the operation of that regime and how it may be improved. For example, it contributes to how you move from Brussels I to Brussels Ia. If we are not part of the regime, we are not part of the European Judicial Network and we really have no part to play in that. But again if, going forward, we are able to achieve a negotiated position with the EU 27 where we are, if you like, semi-detached from Brussels Ia and the other Brussels regime, no doubt they will consider allowing us a seat perhaps not at the table but at least in the room of the judicial network in order that we can contribute to it. However, that too is a negotiation for another day. It is not what this instrument is addressing and not what it is intended to do. So, with all due respect to the noble Lord, Lord Adonis, there is no elephant in the room. Parliament removed the elephant when it decided that, as a matter of law, we would leave on 29 March 2019. The Executive have to address that point in order to put the statute book in proper order.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, it might be helpful if I remind the Grand Committee that this afternoon we are merely considering the regulations, not approving them. Whatever the Grand Committee decides, the regulations will need to be approved in the Chamber, and Members will have the opportunity to debate and vote on it there if they so wish.
Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
(5 years, 10 months ago)
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Lord Keen of Elie
That the Grand Committee do consider the Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Committee will be aware that as part of the no-deal preparations we have, as I indicated earlier, published a series of technical notices to outline the implications for citizens and businesses. I referred earlier to the technical notice published on 13 September 2018 which made clear that we are committed to unilaterally recognising incoming civil protection measures from EU countries to ensure that vulnerable individuals would continue to be protected. This instrument amends the retained EU law to give effect to that policy.
Before I set out the effect of the instrument, it might help if I first explain what I mean by a civil protection measure and how the rules are currently applied both in the United Kingdom and across the EU. A civil protection measure is a decision ordered by an issuing authority of an EU member state in accordance with its national law that imposes restrictions on one person with a view to protecting another when the latter’s physical or psychological integrity may be at risk. The civil protection measure imposes one or more obligations on the person causing the risk. For example, they may be restricted from entering the place where the at-risk individual works or resides, or from contacting them by telephone or other means.
Examples of civil protection measures in England and Wales include non-molestation orders under Part IV of the Family Law Act 1996 or injunctions under Section 3 of the Protection from Harassment Act 1997 and there are similar provisions in the law of Scotland. In the law of Northern Ireland, such measures include non-molestation orders under Article 20 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 and injunctions with regard to harassment.
Regulation 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters, which I will refer to as the civil protection measures regulation, provides for the mutual recognition of such protection measures in civil matters across the EU. The effect of this is that a civil protection measure granted in one member state must be recognised in another without any special procedure for achieving this and it must be enforceable in another member state without any need for a declaration of enforceability. It is, in effect, treated as if the civil protection measure had been ordered in the member state addressed.
If we leave the EU without an agreement then, as presently drafted, the retained EU law will become deficient as the UK will no longer be a member state and will therefore be unable to recognise and enforce an incoming protection measure from any EU member state under the terms of the civil protection measures regulation as retained. Accordingly, the instrument provides that an incoming civil protection measure from an EU member state shall, under the terms of the civil protection measures regulation, be recognised without any special procedure being required and enforceable without the requirement for a declaration of enforceability.
However, the instrument revokes the provision relevant to issuing a certificate in the courts of England and Wales and Northern Ireland which is required for recognition and enforcement in an EU member state under the civil protection measures regulation. The reason for this is that we are unable to legislate unilaterally to restore the reciprocity of approach. That is something I mentioned earlier. We cannot require an EU member state to comply with the civil protection measures regulation with respect to a civil protection measure issued by a court in the UK when we will no longer be an EU member state. The consequence is that EU member states will no longer be bound to recognise, let alone enforce, civil protection measures issued in the UK.
It is our view that to provide for courts in England and Wales to issue such certificates when there is no certainty that the civil protection measure could be invoked in the UK under the EU regulation would provide no benefit for citizens. Indeed, on the contrary, that runs the risk of giving a person at risk a false expectation of continued protection in an EU member state. To give a simple example, if after exit we were to issue such a civil protection measure to an individual who was going to Poland, they might go to Poland in the belief that they enjoyed some degree of protection because of the order made by the English court, but in reality they would enjoy no element of protection when they got there because the order would not be recognised by the Polish court. Of course, for reasons that I have mentioned before, we hope to take that forward in the context of negotiation. The instrument is designed to address the issue of a no-deal exit from the EU.
Although the Government accept that this loss of reciprocity means that those with civil protection measures issued in our courts who wish to travel to the EU will be in a disadvantageous position as compared to those with protection measures issued in the EU who wish to come to the UK, we believe that it is right that we do what we can to provide as much reassurance as possible to persons, often vulnerable persons, who have been granted a protection measure issued in the EU. This is to the benefit of all citizens living in the EU, whether they be EU or UK nationals.
Frankly, we did not come to that conclusion on our own. The proposal that, post EU exit, civil protection measures and certificates issued in EU member states continue to be recognised and enforceable in the UK was discussed with family law stakeholders and leading family law practitioners as we developed our thinking on the issue.
These regulations cover England, Wales and Northern Ireland and the issues here are devolved to Scotland. The Scottish Government are dealing with this matter separately and are determined to bring forward their own legislation in this area. However, we understand that they also intend to continue recognising and enforcing incoming protection measures.
This instrument ensures that the element of the regime for mutual recognition of civil protection measures that we can continue to operate under a no-deal scenario applies—namely, to continue to unilaterally comply with the regulation in England, Wales and Northern Ireland with respect to incoming civil protection.
The civil protection measure regime is not, so far as we are able to determine, widely relied on in any formal sense. However, it provides for hapless people in vulnerable situations an additional protection when moving from an EU member state into the UK. It is for that reason that we have decided on this unilateral approach to this particular issue. It is perhaps a pragmatic approach, but it means that we do what we are able to do in this situation for vulnerable individuals without creating a false expectation of protection for those who may be in the UK and contemplating going to other EU states. We therefore consider that this is the best and most appropriate approach to take if the United Kingdom leaves the EU without a deal.
It is in those circumstances that I commend the instrument to the Committee—adding the caveat, again, that we hope to exit with a deal and to engage in fruitful and constructive negotiations about judicial cooperation at all levels going forward.
Lord Hope of Craighead (CB)
My Lords, about half-way down page 3 there is a reference to “participating Member State” and that it means “a Member State other than Denmark”. Am I right in thinking that, although it is dealt with specifically there, there is no change as far as Denmark is concerned because it does not participate in the EU regulations? Is it purely a matter of drafting that this provision appears?
Lord Keen of Elie
The position as I understand it —I mentioned this earlier—is that pursuant to Article 22 of TFEU, Denmark has an opt out from all of these issues but has a bilateral agreement with the EU in respect of them. I have been corrected. It does not have a bilateral agreement in respect of this one but it does with the others—I apologise—and that is why Denmark is excepted.
Lord Hope of Craighead
It is really a clarification in the drafting—it does not change anything. That is my point.
Lord Beecham (Lab)
My Lords, as we have heard, this statutory instrument has the effect of preventing UK courts from providing similar protection measures and certificates to secure the recognition and enforcement of their judgments in the EU while, paradoxically, recognising such measures and certificates issued by the EU courts. This is extraordinary. There is not an impact assessment as far as I know—if there is I have missed it—and no indications as to what steps will be taken to ensure reciprocity by the EU on this subject. The noble and learned Lord mentioned that possibility en passant without substantive clarification.
The Law Society recommends that there should be an explicit clarification that protective measures issued in the Scottish and Northern Irish courts will be recognised in England and Wales. Perhaps the noble and learned Lord will deal with that when he replies to the debate.
The Secondary Legislation Scrutiny Committee has recommended that this SI should be upgraded to an affirmative, stating:
“To allow UK civil courts to issue certificates post EU-exit would, potentially, mislead protected persons as to the recognition and enforceability of their UK issued protection measures in EU Member States post exit potentially placing them at risk”.
That sounds significant and I wonder why the Government have chosen to adopt the procedure they have rather than make this an affirmative, given the potential implications identified by the Secondary Legislation Scrutiny Committee. It points out that it is unclear what measures would be taken to ensure UK judgments would be recognised after Brexit and that there is an assumption that the EU states will not respect civil protection measures issued in England and Wales. Can the noble and learned Lord confirm that?
Finally, there is a question about the potential cost to the UK Government, the courts and the police of enforcing EU-issued protection orders, which will still be valid, while ours will not be valid there. It looks one-sided: the cost will fall on us as a nation because contrary positions have been taken up. Can the noble and learned Lord clarify that?
Lord Marks of Henley-on-Thames (LD)
My Lords, I broadly welcome this measure and that the Government has in this case taken a humane approach and decided unilaterally to accord recognition to the question of reciprocity, other than the state’s protective measures for the safety of parties, particularly for domestic proceedings and vulnerable citizens. We understand the limited exceptions where such measures being enforced here would be manifestly contrary to public policy or inconsistent with a subsisting United Kingdom judgment.
However, I take the opening point made by the noble and learned Lord that it is important to consider what can be negotiated. What contact has there been at Secretary of State level to see whether some reciprocity of consideration could be given to enforcing protective measures granted by United Kingdom courts in the rest of Europe? Why was that not done a great deal of time ago and outside the context of the other negotiations?
I do not agree with the point made by the noble Lord, Lord Beecham, that we should worry about the cost in the United Kingdom of enforcing protective measures from other member states which we have agreed humanely to enforce. That is a cost we have to absorb. In areas such as this, I believe that accepting that a degree of reciprocity is not essential to achieving a satisfactory outcome for both sides is helpful. I hope that we will get unilateral action the other way in due course. It will certainly make negotiation a great deal easier.
Lord Beith (LD)
I agree entirely with my noble friend. Oddly enough, we had not consulted each other beforehand, but we reached the same conclusion from the same basic principles: where people are particularly vulnerable, when the arrangements we make in this country can afford them some protection, we should do so without regard to the reciprocity we would prefer, which we might not be able to have.
It is particularly depressing to have to see through this statutory instrument which says to people in desperate family situations threatened with violence, “Sorry, but, whereas we have been able to issue a procedure in the past which gives you some protection, even if you are going elsewhere in the European Union”—which they may be doing because there are grandparents or aunts and uncles for their children to see—“we can no longer offer you that, and you are that much more vulnerable as a consequence”. We really must negotiate our way to a better position. Like my noble friend, I think it is right that the Government should continue to offer protection when a court elsewhere in the European Union has deemed it necessary.
Lord Keen of Elie
My Lords, I am grateful for the contributions. No matter how divisive the issues that we face on Europe, we should seek to do good where we can in the present circumstances. We consider that we can do this by accepting these unilateral measures for the benefit of EU and UK citizens.
Regarding the issue of reciprocity, we would clearly like to see the development of a reciprocal regime similar to that which is presently enjoyed, but the way negotiations have been carried on is such that they will not be salami-sliced, if I can put it that way. Going forward, we are going to have to negotiate judicial co-operation as a whole. It is therefore not possible to pre-empt the Commission on these matters by taking them one by one, however regrettable the matter might appear to be.
On the matter of costs, I concur with the noble Lord, Lord Beith: in a sense, it is a matter of no real concern whatever that cost might be, given the individuals that we are concerned with. However, I understand that these orders are very few and far between and that there will be no major impact on our public authorities.
On Scotland and Northern Ireland, the regulation does not apply intra-UK; it applies to the UK as a member of the EU. Intra-UK, these matters are determined by our domestic law, and I see no reason to anticipate that the Scottish Government will alter the present system whereby within domestic law you can have suitable reciprocal enforcement of orders in this area. It is a matter for the Scottish Government to bring forward their own instrument in this regard, and I am not in a position to pre-empt them on that.
Against that background, I am obliged to noble Lords for having welcomed this instrument, at least to the extent that it is doing some good. I therefore commend the draft instrument to the Committee.
Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019
(5 years, 10 months ago)
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Lord Keen of Elie
That the Grand Committee do consider the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I turn to two further draft instruments that form part of the preparations for a no-deal exit. They are, as before, concerned solely with no-deal preparations. The Joint Committee on Statutory Instruments has reviewed these SIs and has no substantive comments to make about them.
I have already referred to, so shall not return to, the terms of the technical notice published on 13 September 2018 that covered these issues as well. I should say that prior to the publication of that notice my officials met on several occasions with key family law stake- holders, including leading family law practitioners and representative bodies, to ensure that our policy proposals provide certainty for citizens, legal practitioners and the court system in so as far as is appropriate as we transition to a post-exit arrangement in the event of no deal. That engagement has continued alongside the development of the instruments that we are discussing today, which are designed to implement the policy outlined in the technical notice of 13 September last year. I will come on to comment on a number of points that will arise concerning a further instrument in connection with some of the somewhat technical issues here, which I will endeavour to deal with as shortly as I can.
The first regulations we are considering in this debate are the draft Jurisdiction and Judgments (Family) (EU Exit) (Amendment etc.) Regulations 2019. These make changes to the current EU rules governing cross-border family law disputes that involve courts in the UK and EU member states. Again, the instrument remedies deficiencies that would arise from retaining these EU rules in the event of us exiting without a deal.
The second set of regulations are the draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) Regulations 2019 which amend rules governing the jurisdiction and recognition of orders in relation to the dissolution of civil partnerships and divorce of same-sex married couples, which currently correspond to the EU rules. The effect of these regulations is that the rules relating to the dissolution of civil partnerships and the divorce of same-sex married couples will instead correspond to those for the divorce of opposite-sex married couples made by the first set of regulations—namely, the first instrument that I refer to. In other words, we are concerned to ensure that all these parties remain aligned.
It may be helpful if I outline the existing EU rules in this area. There are two applicable EU regulations: Brussels IIa, as distinct from Brussels Ia, and the maintenance regulation of 2009. The Brussels IIa regulation provides rules to determine, in cases where those involved come from or live in more than one member state, which court has jurisdiction—that is to say, has the right to hear a case—in relation to divorce and matrimonial disputes; matters of parental responsibility such as disputes between parents as to residence of and contact with their child; or care proceedings. It also provides rules for recognition, and enforcement where necessary, of a judgment from one member state in any of the others.
This includes a provision supplementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction. That provision empowers the court of the EU member state of the child’s habitual residence to make an order requiring the child’s return to that state even if an order has been made by the member state to which the child was taken or in which the child was retained, that the child should not be returned. The regulation also provides rules on the availability of legal aid in these cases and for co-operation between central authorities in EU member states. As far as jurisdiction and recognition and enforcement of judgments in matters relating to parental responsibility is concerned, the Brussels IIa regulation covers similar ground to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, to which I will turn later.
The second applicable EU regulation, the maintenance regulation, sets out in a similar manner to Brussels IIa the rules governing which EU member state court has jurisdiction in cross-border cases concerning family maintenance, together with rules governing the recognition and enforcement of decisions in these cases and provision about legal aid and central authority co-operation. This covers similar ground to another Hague convention: the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It is interesting to note that many regulations of the Brussels regime developed from Hague convention provisions. Like the 2005 convention, the 2007 convention was signed by the EU on behalf of all member states; again, we have taken steps to apply to become an individual state signatory to the 2007 convention. That application has been accepted already; on exit, we anticipate that in the absence of a no-deal exit, we will be a party to that convention from 1 April 2019.
Should the UK leave the EU without an agreement covering these matters, the Brussels IIa and maintenance regulations will no longer operate between the UK and EU member states since these regulations rely on reciprocal action between member states. Even if the UK were to purport to apply these rules after exit, the UK’s status as a third country would mean that the regulations as they bind the EU member states would not apply to the UK. For example, EU member states would not be bound to afford recognition or enforcement under the regulations to decisions of courts in the UK. Retained provisions of the regulation would also overlap with the Hague convention provisions to which I have referred; that in turn would be liable to create confusion and potentially undermine the operation of those conventions because people would be left in doubt over which regime they should have regard to or recourse to in such circumstances. It is this deficiency in retained EU law, which would otherwise remain on the statute book, that we seek to remedy.
The principal means of addressing this deficiency is to revoke the Brussels IIa and maintenance regulations, subject to transitional arrangements for cases that are in train on exit day; there would be recognition for those cases for transitional purposes. However, they will be removed, as they form part of retained EU law, by the jurisdiction and judgments regulations. As I touched on earlier, this will not, however, leave us without rules or international co-operation in these areas. The UK is already a contracting state to a number of Hague conventions in the field of family law which cover many of the same areas as the Brussels IIa and maintenance regulations. In particular, I would mention the 1996 Hague convention, which covers similar ground in respect of jurisdiction, recognition and enforcement of judgments and co-operation between authorities as the Brussels IIa regulation; all EU member states are bound by that 1996 Hague convention. The UK is already a contracting state to that convention, so it will apply upon exit with no deal.
Lord Beecham (Lab)
My Lords, again, I am grateful to the noble and learned Lord for being clear and relatively concise about the matters he is taking through this Committee today. It was important that he should explain the Government’s approach in this statutory instrument and he has done so very well.
The first of these two statutory instruments is the one in today’s batch which appears to have raised the most concern. It is disturbing that no impact assessments were published until 24 January and even more disturbing that they contained next to nothing of interest. It is fair to say that the Law Society “broadly supports” the statutory instrument on the basis that,
“it would be inappropriate to unilaterally continue the existing mechanism in the event of no deal”.
The grammatical error is theirs, not mine. Can the noble and learned Lord indicate whether there have been discussions with the EU about the future position on this, or on any other basis?
The Law Society stresses,
“the scale of loss of international functionality in family law in the event of no deal”,
It points out that,
“the lives of UK and EU 27 citizens have become intertwined in the last 40 years”.
It goes on to cite five significant benefits enjoyed by UK families, the future of which are at risk.
These are: the regulations on mutual recognition of protection orders, which help the protection of victims of domestic violence or harassment across borders; the European enforcement order, which facilitates the enforcement of uncontested claims; the maintenance regulations facilitating cross-border payment and maintenance; and the Brussels II regulation, which allows mutual recognition of divorce orders and determines the jurisdiction for them in domestic cases in close collaboration with courts and welfare services on issues affecting children, including child protection and abduction. Finally, the system provides mutual recognition of contact orders, and the enforcement of orders such as, in effect, custody of access.
Without a deal, we would have to fall back on less comprehensive provisions. There are, however, a number of additional concerns. Although the Minister in the other place, Lucy Frazer, informed the Justice Select Committee that there is an agreement to apply current rules to cases ongoing on exit day, the Ministry of Justice has confirmed that there is no such guarantee that the EU states will do this—they will treat us as a third state, and it will depend on their own law. This raises the risk of a rush to the courts to secure a decision under the present regime, which would cause real difficulties in cost to our own system.
Alternatively, people may find that a case started under one set of rules will be concluded under another set, with consequential delay and at greater cost. If the new system is deemed by one party more likely to assist his or her claim, there might be competing petitions. Will the Government therefore be addressing these issues—at the very least, seeking to ensure that the current rules will continue to be applied in all cases begun before Brexit?
I understand that the EU has issued a notice saying that only orders that should have been registered in the relevant member state would be recognised. There is also concern that the instrument, as drafted, could mean that a prenuptial agreement that is the subject of negotiation at the date of Brexit may not be upheld. We are dealing with issues potentially affecting large numbers of people, with 1 million British citizens living in the EU, and 3 million EU citizens living in the UK. The Bar Council points out that there are currently as many as 16 million cross-border family disputes in the EU, 140,000 international divorces and 1,800 cases of child abduction. What is the Government’s estimate of the number of cases of these three kinds affecting UK citizens, and EU citizens resident in the UK? I do not anticipate that the noble and learned Lord will have that information today, but I am sure he will convey it after today’s events.
The Council points to two EU instruments that impact significantly on our family law. One is on jurisdiction, recognition and enforcement of decisions in matrimonial cases, parental responsibility, and crucially, on international child abductions. The other deals with maintenance, including child maintenance. But the Bar Council cites a range of other benefits, including the protection of victims of domestic violence and forced marriage protection orders, together with a streamlined process for enforcing uncontested claims—for example, where the parties agree an out of court settlement.
While departure from the EU without a deal would not affect UK law, the Bar Council points to the risk of uncertainty, duplicate court proceedings, possible problems with enforcing UK court decisions in the EU, and significantly, costly pressure on an overstretched court system here. There are possible alternatives, which the Bar Council cites, under the Hague and Lugano conventions. But these are not, apparently, without problems. For example, we would have to join the EFTA or secure the agreement of all Lugano state members to adopt those systems.
There are also problems over financial provision for children. For example, these will be made only where the child and its resident parent live abroad, and the non-resident parent lives in England and Wales—whereas now it is the other way round. Should not the position be as it was before? As it stands, children living in the UK with fathers in the EU are likely to lose out. Further, it will be possible for the court only to make an order for periodical payments and lump sum or property orders.
Lord Marks of Henley-on-Thames (LD)
My Lords, I do not propose to address the same matters of detail that the noble Lord, Lord Beecham, has done. I said a great deal of what I wanted to say about the general impact on judicial co-operation and co-operation in legal matters in the debate on the first of these statutory instruments. But let the Minister and the Government be in no doubt that the issue of co-operation in family justice, and the replacement of the system we have now by the bitty and only partial system he has outlined, is the substitution of a much less satisfactory and much less smooth step backwards—which is to be deplored—from the extremely well-respected and widely understood system that we have now across the European Union.
The noble Lord, Lord Beecham, mentioned 16 million cross-border family disputes. The European Parliament estimates that 10% of European citizens are married to people of a different citizenship, and a very large number of those are married to other European citizens. I am one of them; many in your Lordships’ House and the other place are also married to other EU citizens. Even Nigel Farage is—or was—married to an EU citizen of another state.
We have a system now that works well and is widely respected across the whole gamut of domestic law. Jurisdiction is the area where I think there has been the most difficulty because the first court is the place of jurisdiction in divorce rulings, which was difficult to accept but is now widely understood. Recognition and enforcement are absolutely crucial. Going back to the Hague rules will be unhelpful by comparison with what we have now. The system of child abduction goes back to the Hague convention of 1980. Yes, it was there but the override that we have under Brussels IIa makes the system work far better, far more effectively, far more cheaply and with far more co-operation.
Judicial co-operation across the European Union has generally been helpful and beneficial and we have all gained immeasurably from the co-operation across different jurisdictions. Legal aid is available in respect of cross-border disputes within the European Union, which will not be available after we leave it. The new arrangements for the maintenance regulations are absolutely hopeless compared with what we currently enjoy for intra-European disputes, as anybody who is involved with divorces between, for instance, UK and US or other third-country litigants well knows.
I entirely accept the Government’s argument that we simply could not insist on losing reciprocity and nevertheless maintain unilateral arrangements in the case of these convention advantages, the reason being that we would put UK citizens at severe disadvantages when their relationships with other EU citizens broke down. Nevertheless, the Minister and the Government should not rest on the consultation that they have had by discussion with some family lawyers. The Government should be in no doubt that family lawyers generally deplore the loss of the European regime, which is what would face us if we went through with a no-deal exit.
The Explanatory Memorandum produced by the Government is in similar terms to, and shares the faults of, that in respect of civil and commercial cases. It says at paragraph 12.2 on page 6:
“In the event of a no deal EU Exit, the impact on business, charities or voluntary bodies (being those that advise, represent and support individuals and families engaged in cross-border family law matters) of this instrument will, on balance, be positive. The amendments provide a basis for continued reciprocal cooperation with most EU Member States through the UK’s participation with those Member States”.
It then goes through the Hague conventions that will be available. That is a comparison with the prospect that we would enjoy if we had no statutory instrument to cover this position. The Explanatory Memorandum faces reality later on in that paragraph, where it says:
“However, the change to Hague Convention rules and the new domestic rules on divorce etc jurisdiction, maintenance jurisdiction and parental responsibility legal aid will require relevant businesses, charities and voluntary bodies to familiarise themselves and adjust their administrative arrangements to deal with the new rules. In some cases (especially divorce etc jurisdiction) the new rules could lead to greater disputation and complexity”.
Greater disputation and complexity always means greater cost. In family cases it is greater stress, unhappiness and mental health issues, and severe damage to children. One sees in so many of these cross-border cases the added damage to children, even with the present benign arrangements, because their parents are in different jurisdictions. The Explanatory Memorandum goes on:
“In the event of a no deal EU Exit, the impact on the public sector is expected to be an increase in case volume and complexity of cases before the family court due to the changes in divorce and maintenance jurisdiction rules. However, this instrument will have positive impacts on the family court as it ensures there will be workable rules governing cross-border family law disputes”.
Once again, this is confusing the two issues. Yes, there will be workable rules and, yes, that is better than no rules at all, but it is far worse than what we have now.
Of course, I accept the other statutory instrument that same-sex marriage and civil partnerships should be put on the same basis as opposite-sex relationships, but we are once again facing a situation where it is my view—and, I suggest, a view that ought to be taken seriously by the Government—that the loss of co-operation in family law and relationship law generally would be very serious, and that those prepared to countenance no deal should take that into consideration far more than they do at present. I know that the noble and learned Lord and the noble Baroness, Lady Vere, take these matters seriously. I wish other members of the Government would do the same.
Lord Keen of Elie
I am obliged to noble Lords for their contributions. I reiterate what the relevant comparators are for impact assessments in consideration of these instruments. This Parliament determined to make a law by reason of which we leave the EU on 29 March 2019. The Executive not only have to respect that law, as made by this Parliament, but have to make appropriate plans and arrangements to allow for that in the event that no withdrawal agreement is in place as at 29 March. So, with respect to the noble Lord, Lord Marks, we are carrying out a relevant comparison within the impact assessments in that context.
I will not gainsay the comments about the benefits we have enjoyed from the Brussels regime, whether in the context of divorce, maintenance, child abduction or the wider issues we have already discussed today of commercial and civil cases. We have all benefited from that regime, but we cease to be a party to it because this Parliament has made a law determining that that would be the consequence on 29 March 2019.
On the issues of family law, fortunately we have, in essence, the foundations for all that we find in Brussels IIa. We have the 1970 Hague convention on recognition of divorce and separation and the 1980 Hague convention on child abduction. The noble Lord, Lord Marks, is quite right that it does not contain the override, but then it cannot because we will not be in a position to make an order overriding an order of an EU state court when we have left the EU. We simply cannot do that unilaterally, so we have to accept that. We have the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in family matters. In the context of maintenance, we have the 2007 Hague convention. All of that will be in place and, as I indicated earlier, we are also applying to be a party to the Lugano Convention, although my understanding is that the Lugano Convention is on civil and commercial rather than family matters. Nevertheless, we are taking all the steps we can at this stage to cover all bases.
On the question of future co-operation, the political declaration refers to the intention to negotiate these matters, but it takes two to tango—as is sometimes observed—and therefore the pace at which we can negotiate these issues is dictated not only by us but by the EU, and we have to take that on board.
The noble Lord, Lord Beecham, referred to the European protection order. That is a particularly difficult issue because the European protection order is in the form of a directive, which is quite specific in its terms. It says that an EU court can issue an EPO only to another EU jurisdiction, and that an EU court can recognise an EPO only from another EU jurisdiction. It is simply not possible even to apply a unilateral aspect of the EPO, but we have done that with regard to the civil protection orders that I referred to earlier.
We have done as much as we can in preparation for a no-deal exit—a no-deal exit of which no one, as far as I am aware, is truly in favour. But we have to plan for that contingency given the state of the law as it has been determined by Parliament. It is in these circumstances that I commend the regulations to the Committee.
Lord Beecham
I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.
Lord Keen of Elie
I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.
There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.
Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019
(5 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Keen of Elie
That the Grand Committee do consider the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019.
Equality (Amendment and Revocation) (EU Exit) Regulations 2018
(5 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text
Baroness Barran
That the Grand Committee do consider the Equality (Amendment and Revocation) (EU Exit) Regulations 2018
Baroness Barran (Con)
My Lords, I am honoured to present to the Committee the Equality (Amendment and Revocation) (EU Exit) Regulations 2018. This statutory instrument, in common with many others currently proceeding through this House and the other place, is necessary to enable the Government to ensure that the equalities statute book remains appropriate as we leave the European Union.
The regulations make purely technical changes to the Acts listed and ensure that our equalities legislation continues to operate effectively after exit day. They are wholly consistent with our commitment to upholding equalities protections across the United Kingdom as we leave the European Union, including those previously conferred by EU law, which have now been incorporated into domestic law through the European Union (Withdrawal) Act 2018. This commitment was most recently repeated by the Prime Minister in the other place on 21 January, when she guaranteed that,
“not only will we not erode protections for workers’ rights … but we will ensure this country leads the way”.—[Official Report, Commons, 21/1/19; col. 1258WS.]
A majority of the amendments are to the Equality Act 2010, an Act that constitutes one of the strongest pieces of equalities legislation in the world. That includes provisions to provide comprehensive protections from discrimination, harassment and victimisation on the grounds of nine protected characteristics. We are determined to ensure that the 2010 Act will continue to give certainty and continuity to, among others, employees, employers and service users, creating a stable environment in which the UK economy can grow and thrive. By passing the regulations, Parliament would ensure that those hard-won protections continue to operate after we have left the European Union. These regulations are purely concerned with ensuring that the legislation remains fit for purpose, by removing or replacing references relating to the European Union, its laws and institutions that will become redundant at the point of exit. This package of changes additionally includes the revocation of two pieces of peripheral, and in one case entirely moribund, retained direct EU law.
I am unsure how much detail the Committee may require about the proposed changes, many of which are merely the replacement or removal of one or two words. It would not be practical to address every change in this speech, but if noble Lords have questions about specific regulations, I will endeavour to address those in my closing remarks.
For the time being, it may assist the Committee if I set out the legislation being amended, together with an example for the purposes of illustration. The draft instrument amends: references to enforceable EU rights, references to EU law and the European Economic Area, and specific EU directives and harmonisation provisions. These provisions will become deficient after we leave the EU unless they are amended. While a majority of amendments are to the Equality Act 2010, the regulations also contain amendments to: the Civil Partnership Act 2004, the Gender Recognition Act 2004 and the Equality Act 2006—which establishes the Equality and Human Rights Commission, its governance arrangements and powers at its disposal.
The regulations also amend, in a minor way, the Equality Act 2010 (Amendment) Regulations 2012, which implement a 2011 ruling of the Court of Justice of the European Union that sex should not be used as a risk factor in determining individuals’ insurance premiums and benefits—the Test Achats ruling. A further regulation then replicates this change in the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2012. This is the only change to Northern Ireland legislation proposed in these regulations.
At this juncture it may be helpful to the Committee if I mention our approach on devolution when preparing this instrument. The amendments to the Civil Partnership Act and Gender Recognition Act relate to policy areas within the competency of the Scottish Parliament, and accordingly we have worked closely with the Scottish Government, and through them, the Scottish Parliament, to ensure there is agreement and to secure the necessary legislative consent. We have also consulted the Welsh Government on these regulations.
Importantly, we have also consulted the Equality and Human Rights Commission in the preparation of these regulations, to ensure it agrees with the legislative need for the changes and that it is content with the approach taken overall, and, in particular, in relation to the amendment that impacts the commission.
Lastly, I will briefly address the two pieces of retained direct EU legislation that we are proposing be revoked. One is Regulation 1922 of 2006, which established the structure and governance of the European Institute for Gender Equality—the research papers for that institute are available on the web. The regulations simply concern the structure of the organisation, which will not be of relevance to us following our exit. The other is Decision 771 of 2006, which established the European Year of Equal Opportunities for All of 2007. As the title suggests, this is outdated and no longer has any practical implication.
I draw noble Lords’ attention to the equalities transparency statement in the annexe to the Explanatory Memorandum. This is prepared in line with the commitment that the Government gave during the passage of the European Union (Withdrawal) Act that every EU exit-related statutory instrument would state whether and, if so, how it amends the Equality Acts of 2006 and 2010. Unlike the vast majority of such SIs, these regulations amend those Acts, and this fact and its effects are duly recorded in the statement.
In conclusion, I hope that noble Lords will recognise that the regulations in this statutory instrument are intended solely for the purpose of correcting deficient or redundant provisions in the legislation that I have outlined. Put simply, this legislation will no longer work exactly as Parliament intended once we have left the EU if this SI is not passed into law. Without making these small technical changes, we would risk leaving in place legislation that is no longer fit for purpose, at best, and which simply does not operate effectively, at worst. I beg to move.
Baroness Gale (Lab)
My Lords, I thank the Minister for the full explanation she has given as to why this SI is before us today and why it is necessary, and for outlining the parts of the regulations that have been revoked and the reasons for that. We support this technical statutory instrument, and I am pleased that this action is being taken now. No doubt the Minister is aware of the concern of the #FaceHerFuture campaign that the UK could fall behind on gender equality once we leave the EU. Will she say what measures the Government will take to ensure that we keep pace with the EU to maintain gender equality? We need a broad commitment from the Government to set out a positive post-Brexit agenda for the promotion of women’s and girls’ rights and gender equality; to ensure that the UK keeps pace with EU measures that maintain gender, race and LGBT equality; and to ensure that women’s services providers, including women’s refuges and other domestic abuse services, receive stable funding. That must remain on the agenda. The UK Shared Prosperity Fund must ensure adequate funding for women’s services.
The Explanatory Memorandum states,
“removing these references will not alter the present effect of EU law domestically in the field of equalities, which the Government is committed to retaining under the principle of ‘non-regression’”.
That is good news, and I hope that it will continue after we leave the EU. If the principle of non-regression is to be maintained after we leave the EU, will the Minister ensure that your Lordships’ House is provided with the information necessary to keep pace with the EU in all matters relating to equalities? Will the Government act on that information if it suits our legislation? I believe this is necessary in order that we do not fall behind the EU in equality for all. I look forward to the Minister’s response and I thank her for explaining this SI.
Lord Deben (Con)
Will my noble friend help me by kindly explaining what is meant by paragraph 3.10 in Part 2 of the Explanatory Memorandum, because I have read it carefully and I do not understand it?
I am concerned that although the Government have made all these promises about maintaining our standards, in the substantive legislation we have had in front of us, none of these things have been entrenched. I point in particular to the Trade Bill, where there is nothing to say that we will insist in future on having trading arrangements only with countries that maintain the same standards that we have. This is marginal in cost terms, but very important in principle. In the European Union, we have common views and our trading is done under common standards. That will not be true in future. Therefore, when we have substantive legislation, I am looking for the Government to entrench those standards so that they are taken into account in the trading negotiations. At the moment, they are not taken into account and Parliament is excluded from any discussion of the trading deals that will be done, whereas we are not excluded—at least, the European Parliament is not—when it comes to European trading deals.
If my noble friend cannot answer that question now, I hope she will explain why the Government insist on generalised statements but do not include such statements whenever they can be justiciably insisted on. I like it when the Government’s feet can be held to the fire, not when a particular Prime Minister has made a generalised promise. I have no doubt that my right honourable friend the Prime Minister has every intention of carrying through what she says, but she will not be Prime Minister for ever—I think that is an uncontroversial statement. I should like a commitment from the Government that in all the substantive legislation they bring forward, they will insist on having the same attitude towards the issues we have discussed today: civil partnership, gender recognition, sexual discrimination and the like.
That is particularly important when it comes to some parts of industry. I know that people say that it really does not matter very much. It certainly matters to our standards on agriculture. In some countries that we propose to have agreements with, there are no standards of this sort. They are able to do things we would not, which reduces their costs and enables them to compete unfairly.
I say one other thing to my noble friend. It is very difficult for those of us who have looked at these matters seriously not to be extremely angry that the Government continue to believe it is even possible to contemplate a no-deal exit. The damage done by that would be so serious that the Government make themselves look pretty ridiculous by not standing up and saying, “We will not allow this to happen and therefore we will not put through this legislation”. In any case, they cannot get it all through in time.
When my noble friend replies, she might be kind enough to avoid two phrases that she uses, neither of which help us. The first is, “not be of relevance to us”. The fact is that what the European Union decides in future, if we leave it, will be of relevance to us. It will not be of relevance in the sense that we will have to obey it, but the idea that we will not be affected by the decisions the European Union makes seems to me pretty barmy. This is one of the problems: we are putting ourselves in a position where we will be affected by decisions the European Union makes, even though we will have no say in those decisions, which will not directly be imposed on us. To use a phrase such as, “not be of relevance to us”, is to mistake the situation. What we mean is that, were we to leave the European Union, we have to amend our laws to exclude those bits that refer to the European Union. That is not the same as saying that it is not of relevance to us.
There is another little word that my noble friend used: merely—that this “merely” changes the situation to the new situation. This is not a “mere” change; it is another piece of legislation that makes Britain less able to deal with these matters, less influential and, frankly, less safe. As the noble Baroness, Lady Gale, perfectly properly said, we need real acceptance that if we remove ourselves from the European Union, we do not have the same guarantees of continuing with these standards. Most of us find unacceptable the idea that leaving the European Union is merely a matter of transference.
I hope my noble friend will accept that it is much easier if we just say, “This is an attempt to put our law into a position in which it would not totally collapse were we to leave with no deal”. Let us not use any of these words that diminish or reduce the seriousness of what we are doing—the barminess of the whole process and the fact that, if we were to leave the European Union with no deal, we would not be bothering much about gender recognition but about whether people could be fed and whether we could get things on to the supermarket shelves. This is the problem with our discussion: it is all in fairyland. It is all as if things would just go on and that somehow we could have these little changes at the edges.
This is not my noble friend’s fault. She has not started it and I have no idea what her views about it are—she would, of course, not be able to state them whatever they were. I want her to understand that this is an extremely painful process for any of us who have cared about Britain’s role in the world and in Europe, and Britain’s leadership. Therefore, we have to be very careful if we use the words “merely” or “not be of relevance to us”. I leave it to another time for my noble friend to explain precisely what paragraph 3.10 is, but if she can do that today I would be very pleased.
Baroness Hussein-Ece (LD)
My Lords, I thank the Minister for her introduction to this SI and for setting out the Government’s position. I should like to raise a few points. I speak as someone who has been involved in equalities issues for many decades. I recognise some of the hard-fought rights people in our country now have as a result of the EU and grassroots campaigns from women, people from different minority backgrounds and the LGBT+ community. These have all been hard-fought, as has been said. They were never given; they were fought for.
As the Equality and Human Rights Commission rightly says, the EU has played a pivotal role in ensuring that the underpinning of these rights has been embedded in our laws. For example, EU law has led to changes in UK law to protect equality and human rights, which, let us not forget, includes things such as human trafficking, including greater protections for victims and victims’ rights; disability rights, with huge changes due directly to EU laws, such as improved protections at work and Braille labelling for medicines; workplace discrimination, including protections on grounds of religion or belief, sexual orientation or age; and equal pay. These were all very hard-fought for.
There are concerns. I hear what the noble Baroness said, but these nevertheless have to be addressed. For example, in the event of no deal, which is what we are addressing with the SI, the Government will be looking for other international trade deals. The Government have always been looking to reduce the burden on business and business leaders, who, in some quarters, are always pushing for workers’ rights to be reduced. That is a fact. It might be part of new trade deals. These things have to be addressed and we have to have some answers and reassurances that we will not water down any of our hard-fought equality laws or rights.
For example, a briefing from Liberty states that there will be “serious consequences” for human rights after withdrawal. According to Liberty, the EU withdrawal Bill,
“will not retain the Charter of Fundamental Rights of the European Union”,
and will remove the ability,
“to bring legal claims based on the general principles of EU law”.
I am not a lawyer or an expert, but these things seem quite concerning.
Also, under the same fundamental principles, Liberty says that there are rights that do not have equivalents in our domestic law. For example, Article 3, on bioethics, provides,
“a right to physical and mental integrity, prohibiting eugenic practices, the use of the body and its parts for financial gain and the reproductive cloning of human beings”.
I did not know that until I read that. Another example is Article 14, which provides,
“a right to vocational and continuing training. Unlike its analogue under the ECHR, Article 14 is framed as a positive right—rather than a right not to be denied an education”.
It turns it round in that way. Another example is perhaps pertinent to Members of your Lordships’ House:
“Article 25 (rights of the elderly): recognises the right of older people to lead a life of dignity and independence and participate in social and cultural life. This right is unique and has no equivalent under the ECHR or any justiciable international treaty”.
Lord Deben
Is not the fundamental problem that because we have not taken that into our law, there is no justiciable ability of people to take the Government to court? When the Government say, “This is merely moving from European law into British law”, that is not true. It is moving those little bits in detail, but it is not moving the fundamental rights which are enshrined in these very important statutes and which we can refer to in the courts. Now we will not be able to take the Government to court on a full range of these matters, which is a serious diminution in our rights.
Baroness Hussein-Ece
The noble Lord advances my case. I was giving a few examples of some of the rights that currently protect different sections of society, but they will not necessarily be protected—and probably will not be—under what is proposed in the SI, which simply harmonises and takes out some of the laws that we currently enjoy and puts them into domestic law. If it is not already something that we recognise, it will not be there. Therefore we need some answers to these issues.
Article 10, which is important and which we discuss a lot in your Lordships’ House, is on freedom of thought, conscience and religion. It,
“includes a right to conscientious objection not recognised in domestic law”.
That is another example of what will not necessarily be harmonised or merely slipped into our domestic laws, because it does not already exist.
The question with the EU withdrawal Act as it stands is: is it not the case that we risk losing protections for sections of society that we have enjoyed for many decades now? An example is the loss of protection for women in work. The noble Baroness, Lady Gale, mentioned gender equality and how we must keep pace on that and not slip back. In addition, as I mentioned earlier, some business leaders see some of these rights as a burden. We need some reassurance from the Government of today, but they may not be the Government of tomorrow, a future Government, so reassurances in themselves will not be enough, because Governments come and go. We need something more fundamental enshrined in our law, which will provide the protections that we do not currently have.
Can the Minister address some of these issues? Another example is that European law has recognised the right of older people to live a dignified and independent life. There is no equivalent of that in the ECHR or a treaty, as I said. While I understand the sentiments the Minister expressed today, we need more than assurances; we need something more cast-iron, and even copper bottomed, which we will probably not get today. That will probably be for another day.
There are a lot of questions and concerns about how we keep pace with issues such as gender equality, race equality measures, LGBT rights and disability rights. Those laws are always evolving to keep pace. The EU has been a positive force for change, enabling us to keep pace and harmonise with those laws. If we are outside the EU, what will be the force for that? Will equality legislation and priorities simply slow down? They may not be a priority any more; other legislation will probably be seen as more of a priority. Quite simply, they could just be weakened and diluted and rights could be lost.
I ask the Minister to address the points that I have made and give more reassurance as to how these issues will be tackled. The UK has proudly played a pivotal role in bringing these protections for protected groups into EU law—we have been at the centre of that, if not the forefront—so how will we ensure that we do not fall behind?
Lord Smith of Finsbury (Non-Afl)
Before the noble Baroness sits down, I suggest a very clear example of exactly what she has been talking about. In 1997-98, the only reason why we in this country were able to change the rules on the age of consent for gay male sex was that two brave gay men took the case to the European Court, and the court gave a judgment that meant that not only were we able to change the law here but we had to change it. That is a very good example of exactly the impact, which the noble Baroness is talking about, that it has had over many years.
Baroness Hussein-Ece
I was just concluding but I am very grateful to the noble Lord, who I know has himself been pivotal in equality. In fact he was my MP at one time, and I remember that he was in the vanguard of changes in equality legislation.
I have many more examples, which I shall not itemise today, but we are looking for an example like that. There might be something in future involving the rights of people who need protecting. Where do we go for that if the Government of the day are not interested or do not see it as a priority? What will be put in place to ensure that future generations have the same protections that we have enjoyed?
Baroness Barran
My Lords, this has been a very constructive and heartfelt debate, and I thank noble Lords for their helpful points regarding both a recognition of the progress made in this country over many years in relation to equalities and the challenges that we face in future. I hope that noble Lords are reassured to some extent by my opening remarks about the nature of the proposed amendments in this specific instrument, as a number of the points raised are obviously broader than its scope. These changes are necessary to ensure a properly functioning statute book after EU exit while not in themselves amounting to substantive changes in policy.
I shall deal with a number of the points raised by noble Lords. The noble Baroness, Lady Gale, asked how we will keep pace with the EU to maintain gender equality specifically, while the noble Baroness, Lady Hussein-Ece, and my noble friend Lord Deben raised broader points in that regard. I reassure all noble Lords that we are committed to keeping all the protections in the Equality Act 2006 and the Equality Act 2010, which include gender equality but also go much broader.
My honourable friend the Minister said last week in the debate on this instrument in the other place that from the date we leave the EU, the UK will be free to set its own priorities, including those on gender equality and women’s rights. The UK has often been in the vanguard of developing new legislation and policies that support women in the workplace, tackling violence against women and girls, and ensuring that women are represented in political and public life. Our recent regulations, for example, requiring employers to publish their gender pay gap go further than anything required by the EU or any other member state. The other area where this country differs in a very positive way from the rest of the EU, is in relation to the public sector equality duty. I hope that noble Lords will reflect on the balance; there are definitely areas where this country is significantly ahead in terms of equality legislation.
Lord Deben
My Lords, all that is very true and I am proud of what this Government have done in both of the areas to which my noble friend refers, but could she explain why we have not transcribed into British law the requirements of the document to which the noble Baroness, Lady Hussein-Ece, referred? Those are the fundamental rights. We may be free to make changes, but humans in this country are no longer free to take the Government to court. We are losing a basic right. This is not a freedom at all.
Baroness Barran
If my noble friend will be patient, I will cover that point in a moment.
We will continue to engage with leading academics across Europe and internationally, bringing together the latest research on what works to deliver gender equality in the workplace through our Workplace and Gender Equality Research programme and our Gender & Behavioural Insights programme. Once we leave the EU, we will remain close to our European colleagues. We will continue to share good practice, collaborate with others and follow developments in Europe closely—a point which my noble friend Lord Deben questioned. The EHRC will remain part of Equinet, which is the European Network of Equality Bodies, and continue to be engaged with their work. Through bodies such as the Council of Europe, where a UK official now chairs an important gender equality body, the ILO and the UN, we will ensure that we are engaged with institutions and countries that are committed to achieving gender equality and the empowerment of all women and girls.
The noble Baroness, Lady Gale also asked about funding for specialist women’s services. She will know that this is a cause dear to my heart and I understand very well why she raises this point. The Government are absolutely committed to protecting victims of domestic abuse. Since 2014, MHCLG will have invested £55.5 million in services to support victims of domestic abuse, which includes funding refuges. The department is carrying out a review of how domestic abuse services are commissioned locally and funded across England. The review has been informed by an audit undertaken by Ipsos MORI for the provision of domestic abuse services across England which will enable us to understand what impact they are having and identify any gaps. MHCLG is also working with the domestic abuse sector and local authorities, drawing on their expertise and data, to develop sustainable delivery options for domestic abuse services in future. The noble Baroness will, I know, also welcome the introduction in the other place of the draft Domestic Abuse Bill, which I am sure will provide an opportunity to address some of these issues.
She also asked about the issues of non-regression and how this House will be kept updated. As I have already said, the Government are absolutely committed not to roll back workers’ rights when we leave the EU. This has been confirmed most recently by my right honourable friend the Prime Minister. I cannot ensure that your Lordships’ House will be updated formally with changes in EU equalities law. Obviously, the Equality and Human Rights Commission and the Women and Equalities Select Committee will continue their important work and produce their reports, which noble Lords will be interested to follow.
The noble Baroness asked for an assurance about the shared prosperity fund. We will be consulting on this and are concerned to ensure that disadvantaged groups are not left out of the fund. I am pleased to say that the Government Equalities Office is discussing gender issues, which are clearly very relevant here, with those in government leading on the fund.
My noble friend Lord Deben asked me to explain paragraph 3.2 of the Explanatory Memorandum—
Baroness Barran
I am sorry. Paragraph 3.10, which relates to Regulation 5(9)—I have to warn the noble Lord that this may not shed entire light on the matter—states:
“Regulation 5(9) amends Schedule 23 to the Equality Act 2010. This provision currently contains an exemption which allows a training provider to provide training to a person who is not ordinarily resident in the European Economic Area (EEA) where the training provider thinks that the training recipient does not intend to exercise the skills obtained in this country. The amendment recognises that the UK will not form part of the EEA after exit day and so ensures that this exception now applies to any country outside Great Britain”.
If the noble Lord would like me to write to him to clarify that any further, I would be delighted to do so.
The noble Lord also asked about future trading arrangements. I cannot speak for any future Government, but this Government have absolutely no intention of diluting workers’ rights, which was noted by my right honourable friend the Prime Minister very recently, as I mentioned. He also questioned whether we were trying to “diminish the debate”—I think those were the noble Lord’s words. I will try not to say the “M” word, but I am trying to focus only on the specifics of this statutory instrument. To repeat the words of my right honourable friend the Minister for Women and Equalities in the other place, this gives us a chance to choose our priorities going forward. It is really important that all noble Lords acknowledge the leadership we have shown. I have a table here that shows a number of areas, particularly in relation to goods and services, where this country is leading the way in rights. I already mentioned the public sector equality duty.
Turning to the questions of the noble Baroness about the Charter of Fundamental Rights and wider human rights issues, this statutory instrument does not have any bearing on the charter, which applies only to EU law or EU-derived law. It catalogues a range of EU rights and principles, the original sources of which are found elsewhere in EU law. The charter itself is not needed after EU exit because EU law, which is the source of these rights, will be copied on to our domestic statute book. I hope that the noble Baroness may take some reassurance from the fact that the Women and Equalities Committee acknowledged this in its 2016 inquiry, agreeing that,
“it would be difficult to apply the Charter so that it would function in a domestic context alone”.
In addition, the protections from the European Convention on Human Rights, which have been given further domestic effect by the Human Rights Act 1998, are unaffected by EU exit. The noble Baroness also raised a number of other issues, but if she will forgive me, I will just pick one, in relation to equal pay protections. These existed in Great Britain long before any EU rules were introduced and the European Union (Withdrawal) Act 2018 will retain Article 157 of the treaty of fundamental rights of the European Union in domestic law.